Mann v. Eckford's Executors
New York Supreme Court
This was an action of debt, tried at the New-York circuit in October, 1834, before the Hon. Ogden Edwards, one of the circuit judges.
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This was an action of debt, tried at the New-York circuit in October, 1834, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiff, as receiver, appointed by the court of chancery, of the property and effects of TheWestern Insurance Company of the village of Buffalo, declared on a bond executed to that company by Henry Eckford, the testator, bearing date 17th July, 1826, which, after reciting that the Western Insurance Company of the village of Buffalo, had paid the money for a bond made by Thomas Gibbons, in the penal sum of $50,000, bearing date 2d December, 1825,…
1Opinion of the Court
*508 By the Court,
Bronson, J.
One of the grounds on which the defendants moved for a nonsuit was, that the plaintiff was bound to prove a demand upon Gibb'ons for the payment of the money secured by the bond and mortgage, and that notice of the non-payment had been given to Eckford, or his executors.. In actions upon the contract of guaranty it is sometimes necessary to aver and prove a demand of payment from the principal debtor, and notice of the non-payment tó the guarantor. Mechanic Ins. Co. v. Ogden, 1 Wendell, 137. Douglass v. Reynolds, 7 Peters, 126. 3 Wheaton, 154, note. But I think no…
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