HILL & M'GUNNEGLE vs. MERLE ET AL., 10 La. 108

Martin, J., delivered the opinion of the court. This is ah action on a bond, given to release an attachment. The defendants became the sureties of one Alphonse Wet-more, who being sued by attachment, executed his bond to the plaintiffs, in order to release a large quantity of flour, which had been attached in the suit against him. The plaintiffs had judgment in said attachment suit, on which writs of fieri facias and capias ad satisfaciendum were issued, and returned without success.

The principal defence set up to this action, rests on the ground, that the agent of one of the defendants gave notice to the plaintiffs, that there was a steam-boat in port, in which the principal in the bond (Wetmore) bad an interest, and requiring them to seize it, in order to pay and satisfy their claim, and at the same time tendering to them money to-defray the expenses and charges of the proceeding, but that the plaintiffs neglected and refused to do so. The district judge was of opinion, this was not a legal ground of defence, and gave judgment for the plaintiffs. The defendants appealed.

It does not appear to us that the district judge erred in his decision. The defendants were bound to pay the judgment. Had they done so, they would have been ipso facto subroga-ted to the rights of the plaintiffs, and might have secured themselves by I lie seizure of the interest of the common debtor in the steam-boat, which they were desirous the plaintiffs should have done. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.