Schermerhorn v. Conner

Marston, J. Under the clear and explicit terms of the undertaking of defendant, upon which this action was brought, he could only be held liable when all legal means to collect the note against the Hatehells had been used. This required the plaintiff to show that he had fully exhausted his remedy at law by the recovery of a judgment, the issue and return, at the expiration of the time fixed for a return, of an execution unsatisfied in whole or in part, and where permitted, the filing of a [376] transcript in the circuit court, and the issue and return of an execution therefrom. An offer to prove that such proceedings would be fruitless for want of property would not be a use of all legal means, and could not supply the place of the usual and proper remedies to enforce collection. The judgment must be affirmed with costs. The other Justices concurred.