Case Title

Case Reference No., Date

FACTS:
Jungsay, an appointed guardian of Tito Jocsin (imbecile), absconded with the funds of the latter
his ward. From a judgment in favor of the plaintiff, Jungsays bondsmen (sureties) appealed.
The appellants in contending for the credit, rely upon article 1834 of the Civil Code, which gives
to the surety the benefit of a levy (excusion), even when a judgment is rendered against both the surety
and the principal.

ISSUE: WON bondsmen should be credited w/ P4400 and thus benefit from the principle of excusion?

RULING:
NO. According to Article 1832, before the surety is entitled to this benefit, he must FIRST point
out to the creditor property of the principal debtor which can be sold (salable) and which is sufficient
to cover the amount of the debt.
According to Manresa, the claim for the benefit of excussion have several elements:
1.) It must be claimed in a timely manner
2.) Surety must designate property of the debtor where the debt is to be satisfied and
importantly,
3.) Such property must be realizable and that it be situated in Spanish territory.
The same requisites were cited in Hill &Co,
1.) The surety who wants to claim the benefit of excussion must demand it in time (on the
institution of the proceedings)
2.) He must point out creditor property of the principal debtor
3.) The property must not be encumbered, subject to seizure; and must furnish a sufficient sum
to have the excussion carried into effect.
The purpose of a bond is to secure performance and the attachment of a property situated a
great distance away or a property that is not readily realizable would be a lengthy and extremely
difficult proceeding.
The surety is tasked with designating the property because he is the one to be benefitted by
such task and the one most interested in avoiding difficulties in its execution.
In this case, the property is not sufficient to pay the indebtedness; it is not salable; it is so
encumbered that third parties have, full possession under claim of ownership. In all these respects the,
sureties have failed to meet the requirements of article 1832 of the Civil Code.
Where a guardian absconds or is beyond the jurisdiction of the court, the proper method, under
article 1834 of the Civil Code and section 577 of the Code of Civil Procedure, in order to ascertain
whether such guardian is liable and to what extent, in order to bind the sureties on his official bond, is
by a proceeding in the nature of a civil action wherein the sureties are made parties and given an
opportunity to be heard. All this was done in the instant case.
Disposition: Lower court affirmed.