| Ill. | Apr 15, 1865
delivered the opinion of the court:
Two questions are presented by this record. Mrst, Was the guaranty of Judson negotiable ? and Second, Was due diligence used by the endorser to collect the note of the maker ?
The note was in the following form : .
$586.33. Oswego, 18th Dec., 1857.
Four years after date, I promise to pay to the order of Lewis B. ¿Hudson, five hundred and eighty-six 33-100 dollars, at the County Clerk’s Office, with interest after due at ten per cent., for value received.
E. G. AMENT.
Oswego, Dec. 8,1858
I guarantee the collection of the within note.
L. B. Judsott.
The first count of the declaration is upon the guaranty of the note, to which a demurrer was sustained. The second count was upon the guaranty of the note also, with an allegation of the insolvency of the maker, when the note became due, and that a suit would have been unavailing. The third count was upon the endorsement of the note, and the institution of a suit against the maker, with a return of an execution “nulla, bona” and inability to find property, after diligent search. The fourth was the common money count.
To the declaration, the general issue was pleaded, and a trial, verdict and judgment for the plaintiff, and the case brought here by appeal, where it is assigned for error:
1. Giving plaintiff’s instructions
2. liefusing instructions asked by the defendant.
3. Excluding evidence offered by defendant below, and admitting evidence offered by the plaintiff.
4. The verdict against the evidence.
5. Overruling the motion for a new trial.
The only points pressed upon the attention of the court by the appellant are those arising upon the instructions, separate and apart from the liability of the appellant to any judgment in this action.
No objection is taken to the declaration, but it is assumed by appellant that he is not liable to the appellee on his endorsement ; that it is a special contract of guaranty, and as such, not negotiable, so that an action can be maintained in the name of the assignee.
It will be observed, the endorsement is not by a third party, but by the payee of the note, and by which he ‘undertakes that the note is collectable. It is nothing more than an assignment of the note, without the guaranty, for by the assignment, under our Statute, the assignor undertakes that the note can be collected, and if it cannot be collected, that he will pay it. By the phrase, “I guaranty the collection of this note,” his liability, as endorser or assignor, is neither increased nor diminished. Heaton v. Hulbert, 3 Scam., 489; Childs v. Davidson, decided at this term. Without the guarranty, he would be liable, under section 7 of chapter 73, to any assignee into whose hands it might come, if the assignee has used due diligence to collect the money of the maker by suit, or can show that the institution of a suit would have been unavailing. Scates’ Comp., 291. The guar-anty was not to Dygert, or to any one in particular, but was general.
The idea, that as the endorsement was long after the execution of the note, it is incumbent on the appellee to prove a consideration, has no force, for the reason, the endorsement is by the payee of the note. The case of Joslyn v. Collinson, 26 Ill., 61" date_filed="1861-04-15" court="Ill." case_name="Joslyn v. Collinson">26 Ill., 61, was where a stranger, a third party, had guaranteed' the note after its execution and delivery to the payees. There, proof of a consideration was held necessary, and such is the tenor of all the cases on this subject. Here the guarantor or endorser undertook no more than was imposed on him by law. He was liable under the Statute, if diligence by suit could not get the money from the maker.
This being then nothing more than a statutory endorsement, the right of action is perfect in the assignee of the note to recover of the .endorser.
On the other point, we are of opinion due diligence to collect the money of the maker has been fully shown. The diligent and honest prosecution of a suit to judgment, with a return nulla bona, has always heen considered as one of the best tests of due diligence. It seems to us, the appellee used ever-y means an ordinarily cautious and diligent man, desirous of collecting a debt would use, to collect this note.
It was urged by appellant, that the appellee should have brought suit against the maker, when he saw him in Aurora, in Kane county. At this time he had brought suit, then pending in Kendall county, the county of the maker’s residence, and had he brought another in Kane, the pendency of the suit in Kendall could have been pleaded in abatement, and he would have incurred the expense of the suit uselessly. He was not required to sue in any county, other than in the county of the residence of the maker.
The ability to pay this note and judgment thereon, by Ament, was left to the jury under a mass of testimony which we think fully justified them in finding he had no property liable to execution out of which this debt could be made.
Ament had a right to prefer creditors, and the bonajides of all these transactions, and all his acts to that end, were fairly left to the jury. It is possible some trifle might have been made out of the wreck of his property by extra diligence. Ordinary diligence failed to accomplish anything, and this was all to which the appellee was bound.
As to the instructions, we have examined them carefully, and are of opinion, that those asked by the defendant, and refused, are substantially embraced in those given for him. The instructions taken together, lay down the law of the case, and are so full on all the points presented, the jury could hardly have been misled by any one of them, as they had them all before them.
Perceiving no error in the record, the judgment must be affirmed.
Judgment affirmed.