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
On Rehearing.
(Jan. 2, 1895.)
The earnestness with which counsel for defendants have pressed upon us their application for rehearing constrains us to go more fully into the discussion of the exceedingly interesting question presented on this appeal, jin their main features, the English common law and the Roman civil law differed radically from each other touching the right of the surety to require the creditor to proceed against the principal debtor or the security the debtor had given the creditor before coercing payment by the surety. In the earlier period of Roman jurisprudence, the right of…
2Cases cited25 opinions
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- King v. BaldwinCourt for the Trial of Impeachments and Correction of Errors · 1819
- Pain v. PackardNew York Supreme Court · 1816
- Neimcewicz v. GahnNew York Court of Chancery · 1831
- Babbitt v. FinnSupreme Court of the United States · 1880
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