This was an action ■ of assumpsit, tried at Onslow, on the last Spring Circuit, before his Honor Judge Saunders. The case appeared to be as follows: One Hadnot, a constable, had given the defendant a receipt for a note on one French, for twenty-five dollars, and interest, to collect or return.
Cited by 1 later decisions — most recently December 1822
1 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1
having stated the case as above, proceeded : — We are of the opinion, that the indorsement on this unnegotiable receipt did not amount to more than a
guaranty;
and if so, that the guarantee, was bound to use such diligence to collect the debt of French or the constable, as a prudent and discreet man would under like circumstances, to collect his own debt: and, unless after using such diligence, he failed to obtain satisfaction of the principal, he could not resort to the guarantor.
*79
Towns
v.
Farrar,
2 Hawks, 163. The guaranty made by an endorser is a conditional one.
Williams
v. Collins, 2 Murph. 47; 2 Car. Law Repos. 580. The plaintiff did not show that he had used diligence to collect the debt mentioned in the receipt. The judge thought that he could recover without any evidence showing an effort on his part to get the money. In this we think he erred; and there must be a new trial.
