Bingham v. Mears
North Dakota Supreme Court
Appeal from District Court, Cass County; McConnell, J. Action by J. F. Bingham against E. Ashley Mears and M. B. Mears on an undertaking on appeal. Judgment for plaintiff, and defendants appeal. A surety can compel the creditor to proceed against the debtor, until he has exhausted his remedy against the debtor. Story’s Eq. Jur. 327, 494, 639; Daniels Neg. Inst. 1339; Black River Bank v. Page, 44 N. Y. 457; Philadelphia Ry. Case, 5 At.
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Appeal from District Court, Cass County; McConnell, J. Action by J. F. Bingham against E. Ashley Mears and M. B. Mears on an undertaking on appeal. Judgment for plaintiff, and defendants appeal. A surety can compel the creditor to proceed against the debtor, until he has exhausted his remedy against the debtor. Story’s Eq. Jur. 327, 494, 639; Daniels Neg. Inst. 1339; Black River Bank v. Page, 44 N. Y. 457; Philadelphia Ry. Case, 5 At. Rep. 361; § 1681, Civil Code; Kennedy, v. Falde, 29 N. W. Rep. 670, 4 Dak. 319; Meridan Silver Plate Co. v. Flory, 7 N. E. Rep. 753; Richards v. Oseóla County…
1Opinion of the CourtCorliss, J.
The defendants were sureties on an undertaking given on appeal to this court from a judgment. Their only defense to this action against them on the undertaking is that the principal on whose behalf they signed the undertaking assigned to the plaintiff, as collateral to the claim on which such judgment was rendered, certain promissory notes secured by real estate mortgages, and that such collateral security is sufficient to pay such judgment and all expenses; that they have notified the plaintiff that he must resort to such collateral to collect his claim, but that he has failed to do so.…
2Cases cited12 opinions
- Day v. ElmoreWisconsin Supreme Court · 1856
- Allen v. WoodardMassachusetts Supreme Judicial Court · 1878
- Davis v. PatrickCourt of Appeals for the Eighth Circuit · 1893
- Penn v. InglesSupreme Court of Virginia · 1886
- Morrison v. Citizens National BankSupreme Court of New Hampshire · 1889
7 more not listed; retrieve them via the Exa API.
3Cited by13 opinions
- Chapman v. HoageSupreme Court of the United States · 1936
- Union Indemnity Co. v. WebsterSupreme Court of Alabama · 1928
- Fegley v. JenningsSupreme Court of Florida · 1902
- State Bank of Burleigh County v. PorterNorth Dakota Supreme Court · 1969
- Bank of Conway v. StaryNorth Dakota Supreme Court · 1924
8 more not listed; retrieve them via the Exa API.