
    Foster and Judd vs. J. B. Tolleson.
    
      Unconditional Guarantee.
    
    Where the assignor of a sealed note, passed due, absolutely and unconditionally guarantees its payment, he will not be discharged from liability by the failure of the assignee to give him notice of non-payment, or to sue the maker of the note.
    BEFORE WHITNER, J., AT SPARTANBURG, SPRING TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    " This action was brought to recover the balance due on a single bill, which had been transferred by the defendant, with a guarantee of payment. The recovery was resisted on the ground of want of due notice to defendant of non-payment, and of proper diligence on the part of plaintiffs.
    “ The single bill and guarantee were in following form: ' One day after date I promise to pay J. B. Tolleson, or bearer, three hundred and twenty-five dollars, for value received. Witness my hand and seal, this 22d day of December, 1856.
    Signed, ‘ P. M. WALLACE.’ [l. s.]
    
      “ ‘ I assign the within note to Poster & Judd, and guarantee the payment therefor, for value received.
    Signed, ‘ J. B. TOLLESON.
    “' Pebruary 2.3, 1857.’
    
      “ Certain credits were indorsed, reducing note to one hun- • dred and ninety-eight dollars, and seventy-eight cents, by payment made after the assignment, with the exception of an inconsiderable sum, thirteen dollars and seventy-five cents, 13th February, 1857.
    . “ The parties resided in the town of Spartanburg, and there was no evidence of any notice of non-payment to the defendant, until suit brought February, 1859.
    " Testimony was offered as to the ability of the maker to pay, and the probability of collection in that quarter, if suit had been promptly instituted; whilst plaintiffs relied upon the same developments in reaching a different result. The maker was not sued by the assignees. The testimony was not very conclusive either way, perhaps because not very fully brought out; the parties each mainly relying on the respective legal grounds assumed. It was not pretended that there had been any extension of time, or other act done by the plaintiffs, whereby the defendant had been injured, so that as to such matters of inquiry there was no question for the jury. The omission either to give notice or to sue promptly the maker of the bill to insolvency, before resort was had to this defendant, were relied upon; and neither, I held, would discharge the defendant from his liability on such a guarantee. The jury rendered a verdict, without retiring, for the plaintiffs.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the plaintiffs were bound to give notice of nonpayment ; or on failure to do so, they were bound to use due diligence to get the debt from the payor; failing to do so, they were responsible for the loss.
    2. Because the plaintiffs, having retained the note for two years, in which time the payor became insolvent, it was negligence and a want of diligence, which discharges the defendant according to law.
    
      3. Because, from the case made, it was clear that the debt , was lost by the negligence of the plaintiffs, without notice to the defendant of non-payment. The verdict should have been for defendant.
    
      4. Because the question of diligence is a mixed question of law and fact, and ought to have been submitted to the jury.
    
      Bobo, for appellant, cited,
    Story on Prom. Notes, 460; Boscoe on Bills of Ex. 200; Phillips vs. Astling, 2 Taunt. 206; Bank vs. Hammond, 1 Rich. 285; Douglass vs. Reynolds, 7 Peters, 113; Oxford Bank vs. Haynes, 8 Pick. 423; 2 Kent, 124, (2d ed.;) Reynolds vs. Douglass, 12 Peters, 497; Babcock vs. Bryant, 12 Pick. 133 ; Salisbury vs. Hale, 12 Pick. 416 ; Greene vs. Dodge, 2 Ham. 430 ; Isettys. Hoge, 2 Watts, 128; Johnson vs. Chapman, 3 Penn. R. 18.
   The opinion of the Court was delivered by

O’Neall, O. J.

This action was on the following guarantee: I assign the within note to Poster & Judd, and guarantee the payment thereof for value received, February 23d, 1857, J. B. Tolleson,” written on a single bill or note under seal then past due for three hundred and twenty-five dollars, signed by P. M. Wallace. The question presented in the first ground is, whether the defendant was entitled to notice of non-payment. It is clear he was not. The guarantee was absolute and unconditional, on a sealed note, which is unnegotiable, and was after it was due. This very question was made and decided, that the guarantor of a bond (which in all respects is like a single bill except that it has a penalty) was not entitled to notice of non-payment. The Bank vs. Hammond, 1 Rich. 285. So, too, that case decides the second ground against defendant; for it rules, that the guarantor would not be discharged from his liability on. the supposed laches of the obligee, if there was no extension of time to the obligor, which bound the obligee, as by a valid contract. There was nothing proved in this case which could avail the defendant on the other grounds.

, The motion for a new trial is dismissed.

Wardlaw, J., concurred.

Motion dismissed.  