#### NATHAN EASON v. DANIEL DIXON.

An assignment for value by endorsement of a constable’s receipt, amounts to but a guaranty, and the guarantee cannot recover of bis 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 tire constable who received it for collection.

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. The defendant endorsed this receipt to the plaintiff in these words, “ pay the within to Nathan Eason. — Daniel Dixon.” The plaintiff then gave up to the defendant a note which he held against him, as a consideration for the said endorsement. The plaintiff warranted the defendant for so much money due by receipt, and proved the foregoing case. The defendant contended, that at most the endorsement was but a guaranty of the debt due from French. His Honor told the jury, that if the plaintiff gave value for the paper, and there was nothing to restrict or qualify the defendant’s engagement at the time of his endorsing, it was such an original undertaking, as would enable the plaintiff to recover. There was a verdict and judgment for the plaintiff, and the defendant appealed.

No counsel appeared for the defendant in this court.

J. H. Bryan, for the plaintiff.

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. *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.

Per Curiam. Judgment reversed.