Aston v. Morgan

There is no doubt but the remedy must be prosecuted in every case, according to the course of the forum in which the suit is instituted, and this principle has been carried so far as effectually to prevent the right from beiug inforced, when the statute of limitations of the state in which the debtor seeks shelter, prevents a recovery which might be had in the state in which the debt was contracted, and in which the plaintiff and defendant dwelt when they contracted, as in the case of Nash vs. Tupper: while in other cases, the creditor has been permitted to pursue his debt on a contract, which in the state in which it was entered and the parties did reside, could not support an action, as in the case of Pearson vs. Dwight & al. The principle, however. is a correct one, and is now too well established in these states, to be shaken. In addition to the cases cited, *353there is one determined in the circuit court of the United States for North-Carolina district, in which the plaintiff was permitted, under an act of the legislature of North-Carolina, to maintain a suit against one of the parties to a note executed in Maryland, while, by the laws of the latter state, the defendant's plea, that he was not suable, without his co-obligor, would have availed him. Patterson, J.-taking the distinction between the contract and the remedy; and observing that the contract remained the same, notwithstanding the act, and that the remedy only was extended. Palyart vs. Goulding. Martin's Notes, 78.

It appears unnecessary to determine, whether in this case, parol testimony may be admitted to shew who is principal, and who surety upon these bonds. For, admitting, as the defendant contends, that he is only a surety, yet he bound himself to pay in the first instance as a principal, and to pay jointly and severally.

A surety is presumed to have renouticed the plea of discussion, when it is expressed in the contract of suretiship, that he binds himself as a principal debtor. 1 Pothier on Obligations, 290, n. 408. The surety, who has constituted himself a principal debtor in the contracts cannot claim the benefit of a discussion; nor when he engages to pay, if his principal does not on a given day. *354Neither is the plea of discussion allowed among merchants or bankers. 1 .Ferriere, verbo Discussion. A surety who bound himself in solido with his principal, cannot require a discussion of his property. 1 Denisart, verbo Discussion. Civil Code, 428, art. 7.

Now, in the present case, the defendant acknowledges he was held and firmly bound, with the principal debtor, in the sum demanded, to the payment of which he bound himself jointly and severally with the principal.

He, therefore, bound himself as a principal debtor.

Farther, we believe he bound himself in solido.

The words in the bond are, jointly and severally, which are synonymous with in solido, soli-dairement.

The word solidaire, is applicable to obligations entered into by several persons, so that each promises and engages to pay alone, the total sum, in the same manner as if he were bound alone. Dict. de Trevoux, verbo Solidaire.

The obligation is in solido, or joint and several, between several creditors, when the title expressly gives to each of them the right of demanding payment of the total of what is due, and when the payment mide to any one of them, discharges the debtor. Civil Codes 278, art. 97. There is *355an obligation in solido, (solidarité in the French) on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment made by any of them exonerates the others towards the creditor. Id. art. 100.

It is, therefore, clear that the defendant, both on the score of his being bound as a principal debtor, and that of his being bound jointly and severally, cannot have the benefit of discussing the property of his principal.

If he had, yet his plea would be overruled. It states that his co-obligors have considerable property in Pennsylvania.

But the Civil Code, 430, art. 1, provides that the creditor shall not be compelled to have the prorn perty of the principal debtor discussed, when it lies out of the territory.

In France, the creditor is thought not to be bound to discuss property in the jurisdiction of another parliament. Arrêtés de Lamoignon, titre des Discussions, art. 9.

Lastly, the Court would at all events be bound to overrule the motion for a new trial, as the defendant did not oppose the plaintiff's taking judgment. From this circumstance, we must infer the defendant concluded he had nothing to offer, that could induce us to grant a continuance; and ifthe absence of the testimony now intended *356to avail him, was not thought sufficient to obtain a new trial, it must have been deemed so because due diligence was not used in obtaining it, or because it was inadmissible or irrelevant. In either of these cases, we are bound not to disturb the judgment.

New trial denied.