Ilsley, J.
The preseat suit was instituted in the Second District Court of New Orleans, and grows out of the instrument which is herein transcribed from the record :
“Whereas, a marriage was consummated in the year 1852, between Nemours Pecquet, late of New Orleans, in the United States, and Catherine Ambler Moncure, daughter of Henry W. Moncure, of the city of Richmond, in the State of Virginia, in the said United States of America, of which marriage a daughter named Louise has been born, and on the celebration of the said marriage no marriage agreement or settlement was entered into.
And whereas, since the said marriage, the said Henry W. Moncure, lather of the said Catherine, has paid and advanced to his said daughter the sum of thirteen thousand five hundred dollars, which sum has gone into the hands of the said Nemours, her husband.
And whereas, the said Henry W. Moncure is willing to advance the further sum of thirteen thousand five hundred dollars on the draft of the said Catherine, and in like manner to go into the hands of her said husband, but on the condition and with the express understanding that a guaranty shall be given, so as effectually to secure the said Catherine Pecquet and her said child, and any other children which may be born of her, to be realized and made available for her use, so that the annual interests on this said sum of twenty-seven thousand dollars shall be annually paid to her, through the agency of a trustee, on the death of her said husband, or in the event of his failure in business, so that she and her said child or children shall no longer receive at his hands a support necessary to her condition in life.
And whereas, in consideration of the sums already advanced, and of the further sum of thirteen thousand five hundred dollars to be paid and advanced by the said Moncure as aforesaid, Louis Joseph Pecquet and Marie, his wife, now resident in Paris, in Prance, father and mother of the said Nemours, have agreed, and do by these presents agree and covenant with the said Catherine Ambler Pecquet and Louise, her child, and such other children as may be born of her, the said Catherine, that, in the event of the death of the said Nemours Pecquet, or in case of his failure in business or becoming bankrupt, they, the said Louis Joseph Pec-quet and Marie, his wife, will and do hereby guaranty the said sum of twenty-seven thousand dollars, to be paid to a trustee to be nominated by her, the said Catherine, and by him to be invested, and the annual interest of which is to be paid for the necessary support of her and her said children; her said husband, if alive, to participate thereof; but the said Louis Joseph Pecquet and Marie reserve the right, if either contingency above mentioned shall occur during their joint lives, that, so long as he or she live, they may be permitted to pay six per cent, interest on the said sum of twenty-seven thousand dollars, annually, for the purposes aforesaid, instead of paying the principal sum, and at the death of both of them the said sum, in money or property of equivalent value, shall be paid or conveyed to the said Catherine’s trustee, for the purposes aforesaid. And it is further understood and agreed, that this guarantee shall cease to have any legal force and effect, if, at any time during his life or by his testamentary dispositions at his death, the said Nemours shall have, [225]*225•by dué &nd legal settlement, conveyed the said sum of twenty-seven thousand dollars to a trustee, for the use and benefit of the said Catherine and her child or children, in available funds, he not having failed in business during his life.”
Mrs. Catherine Ambler Pecquet, wife of Nemours Pecquet, duly authorized to institute and maintain her action, claims from the (eoncillary) succession of her father-in-law, Louis Joseph Pecquet, opened in New Orleans, and from Mrs. Marie Pecquet, his widow, represented by her agent and attorney in fact, in sólido, the whole sum of twenty-seven thousand dollars, with interest at the rate of six per cent, per annum, from, the 1st day of October, 1858, averring that the obligation assumed by the defendants has become absolute, by the happening of one of the events or contingencies in the said instrument stipulated, viz: her husband’s failure in business or bankruptcy.
She prays that her father, Henry W. Moncure, be recognized and appointed her agent and trustee, to carry out the provisions of the said act of guaranty.
In default of the authorization and assistance of the plaintiff’s husband in the prosecution of her claim, notwithstanding due legal personal notice on him to that effect, she was properly authorized by the court to stand in judgment.
See Articles 106, 107, C. P.; 123, 126 C. C.; Bruy v. Bynum, 2 A. 279; Villeneuva, Leblanc et al. v. Dubuea and wife, 6 A. 360.
The defendant filed an exception to the effect that the petitioner showed no cause of action, because this action cannot be maintained by the plaintiff before obtaining a separation of property from her husband, and on showing the utter impossibility to recover her matrimonial claims against him after a full discussion of his property.
This exception was properly transferred to and acted upon in the examination of the merits, blended as it is with the vexed and complicated questions which the contract presents.'
The separate answer of each of the defendants was substantially the same. It pleaded the general issue, and averred that the written instrument on which the suit was based can have no effect whatever, either under our laws or under the laws of Prance, the same containing a substitution and fidei commissum, reprobated by law, and the stipulation therein contained never having been accepted or executed.
That, even if the said contract was binding in law, the same does not entitle the plaintiff to the remedy claimed by her, nor to any remedy, except to claim the payment of the interest stipulated in the said instrument, after showing that the sum of money therein mentioned has been paid by her father in the manner therein stipulated; and after obtaining a judgment of separation of property from her husband and discussing all his property, and showing that the contingencies stipulated in said instrument have occurred; that she is legally authorized to bring this suit, and that her husband has lost ah control on her rights and property. All of which the respondents specially deny.
On the trial of the case in the court below, certain evidence was offered by the plaintiff, very material in its bearing on the result of this contro-■■yersy. In the note of evidence is the following entry: “Plaintiff also [226]*226offers testimony taken in France, the court to pass upon what point is hearsay evidence; also testimony taken by consent, this day now filed. The court will pass upon the admissibility of the evidence as objected to by the defendants, as being hearsay evidence, as being- declarations of a husband in favor of his wife, and the right of either party to except, is reserved.
The letters of Nemours Pecquet and one of Paul Pecquet, all offered by plaintiff; but not filed, and objected to by defendants, on the ground that they are declarations of a son against his mother; the declarations of a husband in favor of his wife; that the letter of Paul Pecquet is hearsay.
The right of either party to a bill of exceptions is reserved by the court,-, and the court to pass upon the admissibility of the evidence.”
It was upon this testimony alone that the happening of the event, which was to fix the liability-of the defendants, was shown, if the contract was legally a valid one; and the court below received the evidence without expressing any opinion as to its legality, but thus tacitly overruled the objections to it.
The only mode pointed out by law to test, in this court, the correctness of the opinions of inferior courts, is by bill of exceptions, and none were taken. C. P. Art. 488; and in no other form can it revise such opinions. Graugnard v. Lombard, 14 An. 234.
It is only when the question decided is presented by the pleadings, that a bill of exceptions may be dispensed with. Exchange Bank v. York, 2 A. 139; Scott v. Lawson, 10 An. 547.
The judge a quo, after a very careful examination of the instrument sued on, and the testimony adduced, condemned the estate of Louis Joseph Pecquet to pay to the plaintiff the sum of -thirteen thousand five hundred dollars, with interest, at the rate of six per cent, per annum, from judicial demand, 7th June, 1859; and also condemned Marie Pec-quet, his widow, to pay to the said plaintiff a like sum of thirteen thousand five hundred dollars, with like interest.
This last judgment against Marie Pecquet to be executory only, if she fails to pay an annual interest of six per cent.; the costs of suit to be paid by the defendants.
It is very important, at the outset of the present investigation to determine whether the contract sued on, having been entered into in France, should be decided here by the laws of that country, although those laws have not been proved. And this suggests the broad question, whether the laws of France can be noticed by our courts without proof ?
No principle is better established on the subject of the conflict of laws than this : that the laws of the place of the contract are those which govern it, unless such laws are expressly excluded, or the performance of the obligations growing out of it is to take place in some other country, where different regulations prevail.
It is a general rule of evidence that courts cannot notice the laws of a foreign state, unless they are proved as other facts ; but may not, and do not, cases sometimes arise, in which this rule should be relaxed ?
The law of evidence being the guide by which the truths of a cause should be ascertained and determined, any deviation, from a well established [227]*227rule should never be sanctioned by courts, unless it is manifestly clear that such deviation can be wisely and discreetly made, and will tend to advance a cause and promote the ends of justice. An exception to a rule of evidence may seem not warranted by precedent, and were the rule a part of a system of precise legislation, it would hardly be sanctioned by law; but where such an exception is practically, on principle, useful and necessary, it becomes itself a precedent to be used in future cases.
As illustrative of the correctness of this doctrine, we find two cases reported in 1 Louisiana, Malpica v. McKoun, p. 254; and Arage v. Carrell, p. 532.
In both these cases the law of the place of the contract (Mexico), which was the Spanish law, had been the prevailing law of Louisiana, and the court therefore had judicial knowledge of the law of Spain.
The law of Spain was also noticed, without proof, in Berlechaux v. Berlechaux, reported in 7 La., at page 539, wherein the court observed: “Now, although the Spanish law has no longer any force in the State of Louisiana, since the repealing act of 1828, yet having been considered previously the law of this country, so far as it was not abrogated or altered by statutory enactments, we may still, without violation of the rule which requires foreign laws to be proved as facts, assume some knowledge of it.”
Connecting Art. 3521 of our Civil Code with the repealing act of 1828, it might be inferred therefrom that the Spanish, Roman and French laws were, and had been previously to the cession of Louisiana to the United States, indiscriminately and as distinct codes, the law of that province, and that each of these distinct systems of law had, proprio vigore, remained in force in this State up to the respective dates of the repealing statutes. If this were true, in point of fact, no reason can be perceived why the laws of France, like those of Spain, should not be judi-ciaEy noticed without proof.
Now, it is, we think, a matter of historical notoriety, and a truth hardly susceptible of being controverted, that, when Louisiana was ceded to the United States, the only code of laws in force in that territory, as the prevailing system, were the colonial laws of Spain; and those laws continued in force after the cession, until their repeal in the manner before stated.
Can this be also said in regard to the laws of France? We think not; because it is also historically known, that after the delivery of Louisiana by France to Spain, in 1769, in virtue of the secret treaty of 1763, O’Reilly, Spanish governor and captain general of Louisiana, introduced into that province the Spanish code, in all its parts, and thereby repealed the French laws, which had previously prevailed therein.
It can hardly be supposed that O’Reilly acted without the royal sanction, as all his official acts seem to have met the king’s approval.
In the report of the Council of the Indies to the king of Spain, in 1772, adverting to O’Reilly’s second statement, wherein he considered it necessary that the province should be subject to the same laws as the other Spanish dominions in America, and that all proceedings should be carried on in the Spanish language, the council remarked : Your majesty approved these dispositions of O’Reilly, and the council considering this, [228]*228as an evidence of the advantages to be derived, admires the measures of the said general, which proves the vastness of his genius and that the> establishment proposed by him is so far worthy of being made, that the' necessary cédulas should be issued to the ministers of Havana and New Orleans, etc. See White’s New Recopilación, vol. 2. p. 462.
We learn from Martin’s History of Louisiana, vol. 2, p. 14, that the laws of Spain became the sole guide of the tribunals in their decisions as: early as 1769. And Judge Lerbigny, the organ of the court in Beard v. Poydras, 4 Martin’s Reports, p. 368, seems to entertain no doubt in relation to the abrogation by O’Reilly of the French laws.
That the French laws were 'so entirely rooted out, that no vestiges of their existence, especially of those which harmonized with the habits and feelings of the colonists, and the ancient customs of the colony, can be traced, is hardly to be supposed; the more particularly, as the laws of France and those of Spain had the same origin: that of the law of Rome. But, whatever French laws were retained, it was rather by the tolerance, than with the expressed acquiescence of -the- Spanish rulers; and what those retained laws were, is not generally known. How, then, pan judicial knowledge of any such retained French laws be assumed by our courts?
True it is, that Louisiana was derived by the United States from France, and not from Spain, which had ceded it to the former in 1800; but in the interim, between the date of the treaty óf St. Hdefonso, by which the colony was ceded to France, and its-actual delivery by Spain, the latter country continued in the possession of, and retained actual dominion over the ceded territory, and no ■ change was made in the laws thereof, which were the laws of Spain.
The possession of Louisiana, taken by Saussat for France, was only for an instant, and merely for the purpose of delivering it in accordance with the 9th Article of the Treaty of 1800 to the United States. 'The'repealing, then, by our legislature of all the ■ civil laws, ■ indiscriminately, whether Spanish, Roman or French, which had- existed in Louisiana previously to the transfer- thereof to the United'- States, - -must be .understood in the only sense which the legislature intended to' attach to it.
So far as the laws of France were permissively auxiliary to those of the then prevailing Spanish law, and so far as the Roman law was adverted to, merely as the seminal and prolific source of the Spanish law, and as a means always used to expound the derivative law by its -own .unerring principles, it can be readily understood why the Spanish, Roman and French laws were all collectively abrogated in the sweeping clauses of the repealing statutes.
As we apprehend the rule, courts only take judicial knowledge Of what ought to be generally known in -its jurisdiction.
The laws of Spain were judicially noticed, because those laws were known generally to have been the prevailing code of laws in Louisiana, at the time of, previous to, and subsequently to' the transfer thereof to the United States; and because those laws, as a system, having been operative in this State until their-repeal, have become .almost' inseparably blended with our jurisprudence.
The laws of France must be proved," because,. having been .abrogated as [229]*229the prevailing general law of the province, many years prior to our acquisition of it, and never thereafter adopted as such, we do not possess, judicially, the means of knowing what French laws in particular were retained by Spain and handed down to us.
We have been referred to the Articles of the Napoleon Code, but not proved; and, of course, we cannot notice them, as that Code was never in force in Louisiana, and, indeed, only became, as a Code, the law of France after Louisiana had become a territory of the United States.
In the absence of any proof of the laws of Franco, we have no other alternative than to decide the case arbitrarily, or to determine the rights and obligations of the contracting parties, and the effect and validity of the instrument sued on, by our own laws; which are presumed to be the same as those of France: the locus contractus. Ripka v. Pope, 5 A. 63. Harris v. Alexander, 9 Rob. 151.
The instrument declared on, it is strenuously contended by the defendants, is not legally binding on them, for the reasons and on the grounds set forth in their answers, and pressed in their arguments, which are very elaborate. The points made, and questions raised, are :
1. That, it being conceded by the plaintiff, that the amount claimed is a donation inter vivos, it is null and void as such, because it is not evidenced by notarial act, and because it is not accepted by the plaintiff with her husband’s authorization.'
2. That, as a donation, it contains a fidei commissum in favor of a trustee, and a substitution in favor of plaintiff’s children, born and unborn, which are provisions or conditions contrary to, and reprobated by, the policy of the law.
3. That, supposing, for argument’s sake, that the instrument being binding, the principal sum stipulated therein cannot be claimed, in whole or in part, until both Louis1 J. Pecquet and Marie, his wife, are dead.
4. That there is no solidarity in the pretended obligation, and that solidarity cannot be presumed.
5. Whether the condition has happened on which the contract became executory ?
6. From what date does interest run ?
We will proceed to examine these grounds and questions in the order in which they are presented :
1. If the advances made by Henry W. Moncure to his daughter, Catherine, are donations, are they, as donations, nullities for the reasons given ?
It is not questioned that the two several sums of thirteen thousand five hundred dollars have been actually received by Catherine Pecquet, and that they have both gone into the hands of her husband.
Were these sums abandoned by Moncure to his daughter by gratuitous title, as pure gifts, or were they loans' of money made to her, for which she would be liable as a debtor to him, or to his succession ?
From all the circumstances and facts of the case, as set forth in the instrument, we have no hesitation in concluding that both amounts delivered to Catherine Pecquet were intended to be, and were, pure gifts, made to her by her father, in advance of her share of his succession, and thatjhey would have been subject to collation, unless she renounced his [230]*230succession ; in which event she might retain thorn. It was not a debt for which she would be liable, whether she accepted or renounced her father’s succession.
We view these advances as executed donations which needed no authentic act to prove them, nor any acceptation in express terms. See Art. 1528 O. C. And as was held by the court in Chachéré v. Dumartrait, 2 L. R. p. 41, they vested in the wife a legal title.
There is great similitude between the material facts of the case just cited and the one at bar, as appears by the subjoined statement or extract from the decision referred to :
“The donation,” says the court, “seems to have been made in the following manner: Ohachéré, the father, was the owner of certain tracts of land, of which he permitted the husband of his daughter to take possession and occupy for some time, who afterwards sold this property to one Johnson for $1,600, which was paid (on Chachéré’s ratification and confirmation of the sale) to his son-ip-law. ”
Prom the whole tenor of the evidence, we do not doubt the intention of the father to give these tracts of land to Ms daughter, as a marriage portion; but before any legal transfer could be made to that effect, her husband was permitted to make the sale as above stated.
The price, although paid to him by the vendee, must be considered as due to the owner of the property, Ohachéré, the father, and was left in the possession of the receiver as a donation to Ms wife; he received it as her agent, delivered from her father through the agency of the vendee of the land, who was really a purchaser from Ohachéré, though nominally from Martel.
The donation was thus fully and completely effected. It was as fully executed as if the money had been delivered from the father to his daughter, and by the latter delivered to the husband.
If it was of movable or personal property and was executed, it was good according to law. 0. Code 1528.
This is a ease in point, and seems to us conclusive. Moncure intended to donate to Ms daughter in advance of her inheritance in Ms estate, and did so donate to Catherine, his daughter, the whole sum of twenty-seven thousand dollars, which went into her .husband’s hands; and no better evidence of Nemours’ consent to his wife’s acceptance of the donation than that, if any such consent was needed, can be well conceived.
2. Does the donation to Catherine Pecquet contain a substitution and fidei commissum?
The District judge who tried the case did not view the advances made by Moncure in the light of donations or gifts; and, therefore, deemed Article 1507 of the Civil Code inapplicable.
We concur with the learned judge in his opinion, that this Article of the Code has no application whatever to the subject matter of the present controversy; not because it is not a donation, but simply because the dispositions of the donation do not fall within its provisions.
What disposition is there in the instrument that presents the appearance of, or the resemblance to, a substitution and fidei commissum?
No one is mentioned in the instrument in whom the legal title to the fund donated is vested for the benefit of another. Nor is there anything [231]*231therein which charges the donee to keep the thing for and to return it to another; and these are the tests of nullity prescribed by Article 1507 0. O.
Marcadé, commenting on Article 896 of the Napoleon Code, yol. 3, p. 368, l 111, examines yery carefully into the nature of a substitution, and terms it, “la clause par laquelle un donateur ou testateur impose a celui qu’il gratifie, la charge de conserver la chose donnée jusqu’a son déces, pour la transmettre alors a une ou plusieurs personnes que le disposant gratifie ainsi en second ordre. Ainsi, il faut, pour qu’il y ait substitution, que le bénéficiaire soit yraiment obligó par l’acte, lo. de conserver la chose donnée, et 2o. de la conserven jusqu’a sa mart, 3o. pour la rendre á une personne désignée.”
We look in vain in the instrument for these essential concomitants of a prohibited substitution; nor can we perceive in it any of those inconveniences or evils which have always been a reproach to substitutions.
Money was the thing donated, and it was contemplated that it should be used by the donee or her agent, so as to produce an annual revenue. The donee was not to preserve it; nor would she, even as a trustee, have been bound to keep each identical dollar, and to return that to her children or to her father’s estate.
It was well said, in the case of Groves v. McNutt, 13 A. pp. 122-3, “If that is a fidei commissum, or a prohibited substitution, then the thing which the depositary receives and promises to preserve and return to the depositor, or the sum of money which my friend receives from me, and promises to return in one or ten years, are fidei commissa and substitutions.
See 5 Toul. No. 24 ; 3 Marcadé 460 ; Zacharie, part 2, book 2, section 694.
Marcadé, vol. 3, p. 368, g 460, treating of this subject says, “Il est clair que quand on revolt une chose a charge d’en rendre une autre, il n’y a plus obligation de conserver la chose re<jue.
Il suit de la qu’il ne peut pas y avoir substitution quand la libéralité a pour objet des choses fongibles, en sorte que le donataire ait la libre disposition de ces choses, et soit seulement chargé d’en rendre d’autres de méme nature, qualité et quantité; dans ce cas, en effet, il n’y a pas obligation de conserver.”
Let us examine the facts of the case :
Moncure advanced and delivered to Catherine, his daughter, unconditionally, thirteen thousand five hundred dollars, and subsequently advanced her, conditionally, a similar amount, and the whole amount passed into the hands of her husband; and this total fund was, by the very terms of the instrument, to be realized and made available for her use: so that the whole sum of twenty-seven thousand dollars advanced, should, through the instrumentality of an agent (improperly styled a trustee), to be selected by herself, be invested or placed at interest, upon the happening of one of two events, in order that she and her family, her children and her husband, might be assured in a becoming manner of the means of subsistence, should her husband become unable to provide them.
Is will be observed that no designated trustee was named by Moncure himself ; nor was the title to the fund vested in any one, to be named by his daughter, for the object and purposes expressed in the instrument.
In the case of Franklin’s Succession, 7 A. 421, there was a trust estate, [232]*232which presented an evident substitution ; whilst, in this, the ownership of the thing donated, was vested in the donee, Catherine Pecquet.
It was not the intention of Moncure that a trustee, or fidei convmissaire, should be thrust forever between Mrs. Catherine Pecquet and her husband.
The appointment of a trustee by Catherine Pecquet was merely an advisory measure, which, at her option, she was free to regard or disregard. Any one so appointed by her would have been her agent, deriving Ms authority from her, and not from the mere force of the instrument.
See W. B. Partee, &c. v. The Succession of H. R. W. Hill, 12 A. p. 767.
Mrs. Catherine Pecquet, under the dispositions of the instrument, is-capable of standing herself in court and asserting her legal rights, and she is the plaintiff in this suit.
3. Can the principal sum stipulated in the instrument be claimed in whole or in part, until both Louis <T. Pecquet and Marie, his wife, are dead ?
By an express clause in the contract, it was understood and agreed that, so long as he or she, L. J. Pecquet and wife, live, they may be permitted to pay six per cent, interest on the said sum of twenty-seven thousand dollars, annuaEy, for the purposes aforesaid, instead of paying the principal sum; and, at the death of both of them, the said sum in money, or property in equivalent value, shall be paid or conveyed to the said Catherine’s trustee, for the purpose aforesaid.
It is evident that the term given for the performance of the obligation, to wit: the payment of twenty-seven thousand dollars, or its equivalent, consisted of an event in the course of nature certain, to wit: the death of both Louis J. Pecquet and Marie, his wife. See Art. 2044 C.' C.
The plaintiff, however, claimed from defendants, in solido, the whole amount, principal and interest, but in their answers, the defendants aver that, if they are legally bound at all, the plaintiff’s claim must need be restricted to the stipulated interest.
“The complaint of the defendants,” as was said by Judge Martin in the case of Benedict v. Williams, 4 Rob. 392, “is that the present suit places them prematurely in the situation in which the plaintiff might fairly have placed them thereafter; in other words, that the suit is premature. This circumstance afforded them a dilatory exception, which might have been successfully urged in limine litis, but which cannot avail them after a judgment by default.”
We can see no difference in principle between that case and the present one, on the question of practice now involved.
The defendants, in the case referred to, resisted the plaintiff’s claim, on the allegation in their answer that the right of action thereon had not yet accrued, of which fact, proof was adduced on the trial, and this is the defence in that point, sot up in the answer, and patent in this case.
It was considered by Judge Martin a dilatory exception, in the case of Benedict v. Williams, to be- only urged in limine litis, and we deem that ruling as conclusive in this case. See Noble v. Martin, 7 N. S. 284; Howard v. Steamboat Columbia, 1 La. 420; and also the act of 20th March, 1839, amending the Code of Practice; which provides, that hereafter no dilatory exception shall be allowed in an answer in any cause. If, in [233]*233¡some eases the application of this law seems to operate perniciously, it is still a rule of practice and cannot be disregarded. Dura lex scripla tamon.
4 Is the obligation contracted by Louis J. Pecquet and Marie, his wife, a joint one, or one in solido?
The judge a quo who tried the case, considered the obligation a joint one. By Article 2088 O. C., solidarity is not presumed, it must be expressly stipulated; and this rule ceases to préyail only in cases where an obligation in solido takes place by virtue of some provision of law, “ou la solidarité a lieu de plein droit en vertu d’une disposition de laloi.” We must, therefore, first ascertain what is the nature of the obligation contracted by Louis J. Pecquet and Marie, his wife. The instrument sued on is executed by them alone, and purports on its face to be an acceptance, on their part, of a proposition or offer made to them by Henry W. Moncure to pay and advance to his daughter Catherine, an additional sum of thirteen thousand five hundred dollars, to go into her husband, their son’s hands; provided they would obligate themselves, in the manner in which they did obligate themselves, in the instrument, in which there was a stipulation in favor of Catherine and for the benefit of her children. This stipulation' was a valid consideration for the contract; and as Catherine, by instituting this suit, has consented to avail herself of it, it cannot be revoked. See Articles 1884, 1896 C. C.; Article 35 C. P.; Watt v. Rue, 1 An. 280; Twitchell v. Andry and Wife, 6 Rob. 410; Andrews v. Williams, 4 La. 238.
Was the obligation of L. J. Pecquet and wife a principal obligation, oí-an accessory one — one of suretyship?
The act or instrument has all the features of a suretyship, and satisfies the essential conditions of that species of contract, in which three persons must figure, viz: a debtor, a creditor and a surety. The principal obligor is Nemours Pecquet, who is accountable for his wife’s paraphernal property, which she can legally claim from him by suit, whenever her claim is exigible. Arts. 2360, 2361, 2364, 2368 C. C.; 8 Martin’s N. S. 229; Hawes v. Bryan, 10 La. 136; Rowley v. Rowley, 19 La. 572. The creditor is Catherine, the wife of Nemours; and the sureties are the defendants in this suit.
Art. 3004 defines a suretyship an accessory promise, by which a person binds himself for a person already hound. It was not important that the principal obligation should have preceded the accessory promise. “Non seulement, says Buranton, le eautionnement peut suivre ou accompagner l’obligation principale, mais il peut méme étre' donné avant cette obligation, en ce sens toutefois qu’il est eonditionnel qu’il existera si l’obligation elle-méme vient a exister. ” Fidi jussor el praecedere ohligalionem et sequi. I 3 Instit., de Mdi jussoribus.
The obligation assumed by Louis J. Pecquet and wife was that, in the event of their son’s failure in business, and his inability to refund to his wife the whole sum of twenty-seven thousand dollars, her paraphernal property, thus received by him, they became sureties for its reimbursement.
Had they not assumed this liability, Moncure would certainly not have advanced the second sum of thirteen thousand five hundred dollars.
[234]*234ji wag natural, just and reasonable, that the father and mother of Ne-naours Pecquet should obligate themselves thus for their son. It was laid down as a rule by the Christian Emperors, that no security could be taken in behalf of a husband for the restitution of his wife’s separate estate, unless the father and the mother of the husband contracted such an obligation. Domat, book 4, tit. 9, § 9. And certainly, under our law, such a contract is a valid one, and no legal impediment stands in the way of Mrs. Mario Pecquet to enter into it. See Arts. 1775, 1779, 124 C. C.; Roberts v. Wilkinson, 5 Al. 369; Terrell v. Joe, 2 A. 903; Moussier v. Zunts, 14 A. 18. And no proceeding was necessary in advance or simultaneously with this one against the principal debtor, before a resort against the sureties. Boullé, f. m. c., v. Martin et al., 14 La. 135.
This disposes of the exception to the action filed by the defendants.
The nature of the obligation contracted by Louis J. Pecquet and Marie, his wife, being ascertained, is it one “oil la solidarité a lieu de plein droit en vertu d’une disposition de la loi?” On the authority of Duranton, liv. 3, tit. 14, \ 341, du Cautionnement, “Lorsque plusieurs personnes se sont rendus cautions d’un méme débiteur, pour une meme dette, elles sont obligees chacune a toute la dette; pareeque chacune d’elles l’a effec-tivement cautiohné en entier, en ne restreignant point son cautionnement sur le pied d’une part seulement, sauf ce qui va étre dit sur le bénéfice de divisions.”
The case of McCausland v. Lyons, 4 A. 274, is in point and meets our full concurrence.
The court says: “Under the provisions of our law the contract of sure-tyship is of a mixed character.
The obligation of the surety is to pay the whole debt; but this solidarity is tempered by the right of division. The right, however, vests in facúltale.
The surety has the right to demand the division; but until the right is exercised, the obligation is solidary. ”
In the case cited, as in the one now pending, there has been no demand of division by the sureties. They were attacked by the plaintiffs as debtors in solido, and pleaded the general issue.
The exception is a peremptory one, which must be pleaded specially; and this has not been done in the court below, nor even in this court.”
Bividiiur obligalio inter plwres fidejussores per exceplionem duntuxal, non ipso jure. It is not an exception that can be supplied by the court. See Troplong, Cautionnement, ?¿ 297, and the authorities there cited; Merlin, Repertoire, verbo Caution, $ 4, No. 2.
5. Has the condition happened to fix the liability of Louis Joseph Pec-quet and Marie, his wife ?
The judge a quo thought that there was sufficient evidence in the record to show that one of the events, to wit: the failure of Nemours Pecquet, had occurred, and that the obligation assumed by Louis J. Pecquet and wife had thereby become absolute. In this view we concur; and we consider them legally bound in solido for the whole amount claimed, principal and interest.
6, And this brings us to the last question : From what period must in[235]*235terest be computed ? From the date of the failure of Nemours Pecquet, or from judicial demand ?
This question is not free from difficulty; but we have no hesitation, after due reflection, in restricting the claim for interest, so as to compute it only from judicial demand. The principal sum, it is true, was due by the defendants at the time of the failure of Nemours Pecquet, and they could only retain it by paying the annual stipulated interest; but, so long as Nemours retained possession of the fund, which was the paraphernal property of his wife, -the fruits, or the interest thereof, belonged to the community of acquets, still existing between them. See Art. 2363, C. C. Rowley v. Rowley, 19 La. 580.
Had the plaintiff, instead of sueing her husband’s sureties, brought suit directly against him, it is very evident she could not have recovered interest except from judicial demand, and perhaps from the date of the rendition of judgment; and, as the suretyship cannot exceed what may be due by the debtor, nor be contracted under more onerous conditions, it must, in either contingency, be restricted or reduced to the conditions of the principal obligation. See Art. 3006 La. Code.
By paying the claim of Mrs. Catherine Pecquet, L. Joseph Pecquet and wife become legally subrogated to her rights, and to nothing more. 2157 g 3 C. C.
Upon a careful examination of the whole case, we think that the law and the evidence are in favor of the plaintiff, and entitle her to the judgment which will now be rendered.
It is therefore ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed, and proceeding to give such judgment as should have been rendered by the said court:
It is ordered, adjudged and decreed, that judgment be and it is hereby rendered in favor of the plaintiff, Mrs. Catherine Ambler Moncure, wife of Nemours Pecquet, and against the defendants, in solido, to wit: the succession of Louis Joseph Pecquet, opened in the Second District Court of New Orleans, and Mrs. Marie Collette Ducongé, widow of the said Louis Joseph Pecquet, in the sum of twenty-seven thousand dollars, with legal interest, five per cent, per annum, from judicial demand, the 7th June, 1859, till paid, and the costs of suit in both courts, the judgment now rendered against the succession of Louis Joseph Pecquet to be paid in due course of administration.