An assignment for value by endorsement of a constable's receipt, amounts to but a guaranty, and the guarantee cannot recover of his guarantor, without showing that he has used proper diligence in endeavouring to collect the claim mentioned in the receipt, either of the person from whom it is owing, or from the constable who received it for collection.
DANIEL, Judge, 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. 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.
PER CURIAM. Judgment reversed.