Brown's Executors v. Copley & Jessup

Garland, J.

delivered the opinion of the court.

The defendants are appellants' from a judgment renderéd against them for the price of a slave purchased hy Copley at the Prohate sale of the estate of Samuel D. Brown, deceased* for which he and his co-defendant gave their promissory note. Some time after, Copley sold the slave to one Peck, who expressly covenanted and agreed to pay the note of defendants to Brown’s estate, and in all things in relation to said note to save them harmless. In the court helow, the defendants in then1 answer set forth all the facts, and attach to it a copy of the sale to Peck, and call upon him to defend them, and asked the legal delay to have their warrantor cited. This was objected to hy the plaintiffs’ counsel, and the court overruled the motion, and the defendants excepted. This is the only point in the cause, •and we think the court erred in not granting the delay. The articles 379,-380 and 381 of the Code of Practice seem too blear and imperative to admit of doubt or construction. In the case of Anselm vs. Wilson, 8 La. Rep., 37 , it was held, as there was no privity between the plaintiff and Erwin, Avho was to reimburse the note to defendant, that delay would not be accorded to call him in. The agreement in that case was not 'that Erwin would pay the plaintiff the defendant’s debt, but in *475 ease she had to pay it, he (Erwin) would reimburse her. The , contingency in that case was, not to operate on Erwin, until it Was known, whether defendant had to pay. The court, in that case, went as far as it well could, to avoid the effect of a positive law, which in its operation in the country, is calculated to produce delay in the collection of debts, and considerable embarrassment to creditors.

We are bound to execute the law in all cases, however hard its operation may be, when it appears, its provisions are not seized upon to evade the administration of justice, and the collection of just debts. In this case, we see nothing in the conduct of defendants at all suspicious. ,

The judgment of the District Court is therefore annulled and reversed, and this case remanded to the District Court, with directions to permit the defendants to call Alexander Peck in warranty, and otherwise to be proceeded in according la law; the plaintiffs paying the costs of this appeal.