Discussion

Discussion. By the Roman Law sureties were not primarily liable to pay the debt for which they became bound as sureties: but were liable only after the creditor had sought payment from the principal debtor, and he had failed to pay. This was called the benefit or right of discussion. Under those systems of jurisprudence which adopt the Roman Law, and under the present law of France, the rule is similar; and the obligation contracted by the surety with the creditor is, that the latter shall not proceed against him until he has first discussed the principal debtor, if he is solvent. This right the surety enjoys, as the beneficium ordinis vel excussionis. And again, if other persons are joined with him in the obligation as sureties, he is not in the first instance to be proceeded against for the whole debt, but only for his share of it, if his co-sureties and co-obligees are solvent. This is commonly known as the benefit of division, or beneficium divisionis. Story's Confl. of Laws, 456