delivered the opinion of the court.
This is an action to recover the amount of a promissory note, drawn by Ripley & Thorn to the plaintiffs’ order, upon a written engagement of the defendant, not a party to the note, to guaranty the payment of it, together with two other notes of the same date. The answer contains nothing more than a denial of indebtedness. The District Court being of opinion that the obligations of the guarantor of a particular note, are similar to those of an endorser, i. e., to pay in case of non-payment by the previous parties, provided demand is made and due notice given of default; and, no such notice being shown in this case, gave judgment against the plaintiffs as in case of a non-suit, and they appealed.
If the liability of the defendant were to be tested by the law as settled by the Supreme Court of the United States, the conclusion to which the District Court came, would be, perhaps, fully supported. But a difficulty meets us at the threshhold of this inquiry, to wit: according to what system of laws are the obligations of the parties to this contract to be governed 1 Did they contract with reference to the municipal law of Louisiana, or to the lex mercatoria as expounded by the highest court of the union I And, does there exist an important difference between those two systems? Does the contract'in question present any features essentially different from that of suretyship, as defined by the Civil Code %
Where one payment^of *an theoM^ationhe contracts is essentially one of suretyship, in of'words'it may be clothed, go what may be the cha-muwe°ftobiFga-nSórsement or other commer-cialengagement, accesforya'obH-gation does not partake ot its commercial cha-absolute bif the debt is not paid,*509There is a marked difference between a letter of credit, contemplating a future engagement on the part of its bearer, for which the writer becomes responsible, and the promise to guaranty the payment of an existing debt contracted by another. The former is treated by the best writers on the civil law, as embracing essentially the contract of manda-tum ; the person to whom the letter is addressed, and who acts under it, being regarded in a qualified sense as the mandatory or agent of the writer, and hence arises the obligation of the latter to indemnify him. “It is, says Pothier, of the essence of the contract of mandatum, that the mandator, or principal, should have the will or intention at his own risk, to confide to the mandatory the affair which forms the object of the contract and to engage to indemnify him, and that the mandatory should have the will to undertake the affair. It is this mutual will which constitutes the contract. It is this, also, which distinguishes the mandatum from the simple recommendation ; for, when I recommend to you a person, we contract towards each other no sort of obligation.” The author proceeds to illustrate these principles by a variety of examples. Pothier Contrat de Mandat, No. 18 et seq.
These principles of the Roman law lie at the foundation of all guarantees of a prospective character, and are believed to be of universal application. But on the other hand, when 'one accedes to the existing obligation of another, and engages & „ 6 _ , ' . .. or promises to see it performed, tie becomes essentially a surety; the contract entered into is that of suretyship, in whatever form of words it may be clothed; whether the words guarantor, or security, or surety be used, we look to the essence rather than the form. -Our own code contains clear and distinct provisions on this subject, with reference to which contracts of that character entered into here and to be executed here, must be governed. The definition of surety-ship in the code is sufficiently broad to embrace the case now before us. It is defined to be “an accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not.” Article 3004.
The'guarantor of a note en-theiTis not entl-tied to notice of protest, in order to make him of guaranty of ex-tered into in stitc uro to ho construed in re-municipal0 law! c d Loujsiana not regulated by ^•8fa merca- So, in this case, the defendant guarantied the promfslorynote! surety60!!?6 the makers,although it does not appear the latter •were acquainted menthlSenSa§e" The defend-tor’cannotciaim udmS^by the neglect of the plaintiff to give him notice of a demand and non-payment.Whatever may be the character of the primitive or principal obligation, whether it be an endorsement or acceptance of a bill of exchange, or other engagement clearly commercial, ar>d to be regulated by the lex mercatoria, it is not logical to conclude that the accessory obligation by which a third person walTanls or guaranties its performance, partakes of its commercial character, and is to be construed by the same , . T. . . , system of. laws. If A, at my request, and under my guar-anty, has endorsed the note of my friend, it does not follow that I am entitled to notice of protest in order to make me * liable.
Whatever might be considered in other stales of the union t0 be the rights and obligations of the parties to the contract ° ° \ now under consideration, we are of opinion that they must be ascertained by our own municipal code. The contract is between two of our own citizens, and to be executed here: the of a promissory note at maturity was guarantied, The defendant, in our opinion, became the surety of the mabers of that note, although it does not appear that the latter were acquainted with his engagement. Article 3007. If the defendant bad claimed the privilege of discussion, we q0 not perceive how it could have been refused him; and he can oniy he released from his obligation to pay in some of the ... , , . °T . , ‘, ,. , modes pointed out by the code. He is clearly not discharged from liability, by the neglect of the plaintiffs to give him noí'ice °f a demand and non-payment of the promissory note.
it js therefore, ordered, adjudged and decreed, that the . r -iii , ■. judgment or the JUistnct Court be avoided and reversed, and that the plaintiff recover of the defendant, nineteen hundred and sixty dollars and seventy-eight cents, with interest at ten per cent, from the 3d day of May, 1837, until paid, and costs in both courts.