*201On Rehearing.
PROVOSTS, J.Notaries in the city of New Orleans hold office during good behavior, and give bond in favor of the Governor of the state, conditioned for the faithful performance of the duties of their office. On a bond thus given by defendant as notary, plaintiff became surety in consideration of $100 to be paid yearly in advance. This suit is for the $100 due for the second year. The defense is that plaintiff was released from the bond at the end of the first year, and that therefore nothing is due for the second year.
No time is fixed in this bond for its duration, but section 9 of Act 42 of 1890 must be read into it, which requires the bonds of notaries to be renewed every five years, so that the bond was given to cover a period of five years. And such was the agreement of the parties. In the contract by which plaintiff agreed to go on the bond defendant declares his term of office to be five years, beginning June 21, 1915, and ending June 21,. 1920.
[2,3,4] The Governor is, of course, only nominally a party to the bond; the real beneficiaries, or obligees, are the persons who may suffer loss from the official misdoings of the notary. Now, as the obligor on a contract cannot be discharged without the consent of the obligee, and the obligee, on a bond like the one here in question cannot be known in advance, it follows that the surety on such a bond cannot be discharged except in pursuance of some statute authorizing the discharge. This is a plain proposition.
Acts 14 of 1S78, 46 of 1880, and 75 of 1888 provide for the release of sureties on official bonds, but no contention is made that they have any application to the present case. The contention is that plaintiff was released under the operation of section 10 of Act 42 of 1890, which reads:
“Be it further enacted, etc., that it shall be the duty of the district attorney of the parish of Orleans to institute proceedings by rule in the civil district court of said parish at least once every twelve months, and oftener if he deem it proper and necessary, on all notaries in said parish to test the surety on their official bonds, and should the sureties on said official bonds so tested, be judicially declared not good and solvent as required by law, the notary whose surety has been so declared shall pay costs of said rule and shall be allowed thirty days within which to give a new bond, and on his failure to do so within that time, shall forfeit his commission and turn over his notarial archives and records to the custodian of notarial records.”
Pursuant to this statute, the district attorney took a rule on defendant, returnable June 13, 1916, eight days before the expiration of the first year of the term, of the bond. In answer to this rule the defendant, instead of testing the surety on his bond, as required by this statute, proceeded to give a new bond, and now argues that, Inasmuch as the new bond was accepted by the court, and a uotary can have but one bond at a time, the first bond was vacated, and plaintiff released.
According to this, a notary may change his bond every year, despite the statute which by fixing the term of its renewal at five years fixes at that period the term for which it is given. This court has expressly decided the contrary. Rochereau v. Jones, 29 La. Ann. 82.
Counsel say that since the date of that decision the law has been changed. It has not been changed in the present connection, for that decision was rendered in 1877, and since 1855 the law has been precisely as now that notaries must give bond and renew same every five years. The only difference between the law as then existing and as now is that by the said section 10 of the act of 1890, hereinabove transcribed, the district attorney is required to test the bonds of notaries yearly by means of a rule filed in court.
When, on such a rule, the surety on the bond is found not to be good, the court m,ay *203so decree, with the effect that a new bond is given which necessarily supersedes the first. But in the present case, there has been no such decree. The plaintiff has not been found to be not a good surety. That question was not submitted to the court for decision. Had it been, the decision would have been that plaintiff was a good surety; for the same court, at the same time, in testing the bonds of three other notaries, so decided plaintiff to be. The said statute does not empower the court to vacate a good bond, or discharge a good surety, but only to pass upon the solvency of sureties on notarial bonds. Plaintiff’s solvency as surety on defendant’s bond was not submitted to be passed upon; and the court made no decision and rendered no judgment in that regard.
The reason assigned by defendant for giving a new bond is that plaintiff failed to comply with the following rule of the civil district court:
“Surety companies tendered as sureties in this court will not be accepted unless proper proof of their qualifications as such, is filed and offered in the archives of this court.”
Defendant assumes’ that the burden of “filing and offering” this proof in the archives of the court does not rest upon the party upon whom rests the obligation of making proof of the solvency of the surety, but upon the surety, who is no, party to the rule, and receives no notice of its pendency. But granting this to be so, the plaintiff company did, on June 21, five days before the day fixed for the trial of the rule to test its solvency, “file and offer” this proof in the court. So that the entire foundation for the said reason of defendant for changing sureties was removed several days before the time when the test rule would come up for trial. The return day for the rule was, at first, June 1, 1916. Its turn on the docket not having been reached on that day, the trial was postponed to June 26. Plaintiff knew nothing of the rule until receiving a letter from defendant dated June 21, advising that he was giving a new bond with another surety. Plaintiff at once answered that it could not bo released from the bond, and could not release defendant from the payment of the $100.
The judgment heretofore handed down by this court is reinstated, and made the final judgment of the court.
DAWKINS, J., dissents.