Charpentier v. Castille

Merrick, 0. J. This case is a sequel to the case of Josephine Castille against L. V. Chacéré, Sheriff, et al., just decided, to which we refer for a statement of the facts. After the return of their first execution against the estate, which was notified to the administratrix, and before the sale of the property of Josephine Castille under the second writ issued the 26th of January, 1858, Lobit & Charpentier and Mrs. Francis Ritter instituted the present suit against Alexandre Castille, the surety on the bond of the administratrix, to make him responsible for the amount of the judgments which they held against the estate of Onézime A. Boudreau. The suit was dismissed as being prematurely brought. The appellants strenuously controvert the correctness of the decision,' and contend that they have exhausted all their remedies against the principal, and therefore, are permitted to proceed against the surety. The fifth section of the Act of 1855, p. 365, declares, that “ no suit shall be instituted against any security on any appeal bond, nor on the bond of an administrator, curator, executor, or syndic, until the necessary steps have been taken to enforce payment against the principal.' We have just decided that the necessary steps have not been taken to enforce payment against the principal, in the case referred to, and which is in evidence in this case. The suit is, therefore, premature. It is, therefore, ordered, adjudged and decreed by the court, that the judgment of tho lower court be affirmed, the appellants paying the costs of the appeal.