Hartman v. Burlingame & Latham
California Supreme Court
Appeal from the District Court of the Tenth Judicial District, County of Tuba. This action was brought upon the following promissory note : “ $500. Marysville, February 25, 1856. “ On or before the twenty-fifth day of May, a. d. 1856, we promise to pay to Isaac Hartman, or order, for value received, five hundred dollars, with interest at the rate of throe per cent, per month until paid. r0. “J. Burlingame. r0. [Signed] “W. B. Latham, Jr.” Service was had only on Latham.
Read the full summary
Appeal from the District Court of the Tenth Judicial District, County of Tuba. This action was brought upon the following promissory note : “ $500. Marysville, February 25, 1856. “ On or before the twenty-fifth day of May, a. d. 1856, we promise to pay to Isaac Hartman, or order, for value received, five hundred dollars, with interest at the rate of throe per cent, per month until paid. r0. “J. Burlingame. r0. [Signed] “W. B. Latham, Jr.” Service was had only on Latham. Latham, in his separate answer, denies the indebtedness, and avers that he signed the note as surety for Burlingame, that he…
1Opinion of the CourtTerry, C. J.
Defendant insists :
1. That Latham was, in fact, liable as surety only, and was entitled to notice of demand and non-payment.
2. That the failure of plaintiff to sue wdien requested by surety, operated to discharge his liability.
The first point is settled by the case of Humphreys v. Tale, (5 Cal., 173.) The second we do not think sustained by authority.
The doctrine of the English Courts is, that a security can not be discharged by the mere neglect of the holder to sue; if he desires to protect himself, he must pay the debt, and proceed against the principal; or, he may apply to a Court of…
2Cases cited1 opinion
- Humphreys v. CraneCalifornia Supreme Court · 1855
3Cited by3 opinions
- Bull v. CoeCalifornia Supreme Court · 1888
- Findley v. HillOregon Supreme Court · 1880
- Smith v. FreylerMontana Supreme Court · 1882