Archibald P. Howe v. John Frazer, 2 Rob. 424

Martin, J. N. Yaudry is appellant from a judgment sub-rogating Walker to the rights of the plaintiff on a judgment obtained by the latter against Yaudry as bail of the defendant. The facts of the case are these: Walker became surety for the defendant on an appeal from the judgment in the case in which Yaudry was bail. The judgment having been affirmed, he paid its amount. In the meanwhile, Howe had obtained judgment on the bail bond, executed by Norbert Yaudry in the. original suit against Frazer.

Walker contends that having paid for his principal in the appeal bond the judgment obtained against the latter by Howe, he was legally subrogated to all his rights, and consequently to those against Yaudry, as bail of the defendant.

The subrogation is claimed 'as a legal one, and can only be so under that part of art. 2157 of the Civil Code, by which it is given “ to him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.” Both Walker and Yaudry were bound for Frazer.- If they be bound with each other, it can only be because they are bound for the same person. He who is bound for another, and pays the debt, is subrogated to all the rights of the creditor against the principal. But as to those with whom he is bound, if there be any, he is only subrogated for their virile part.

It is not very clear that the parties are bound with each other, for they did not bind themselves together. They were, however, certainly bound for the same debt, which forms a third category, the first being a binding for another, the second with another, the third for the same debt as another. The Code has certainly made an express provision for the two first, and the question is, whether there is an implied one for the third.

The reason for saying that the subroga-gation is implied in favor of the party who becomes last bound is,that he was induced to undergo the responsibility because the principal’s solvency was guarantied by the person who first bound himself for him. This reason appears cogent. -The person who first binds himself gives credit to the principal, and would wrong him, who under faith of this, superadds his responsibility, if the former declined to comply with his engagement to satisfy the debt if the principal does not.

The same reasons which militate against the first accessory obligor so as to charge him with the whole debt, militate with perhaps little less force against his being charged with one-half of it only. Judgment affirmed.