
    Sullivan,
    Nov. 5, 1901.
    Colby, Ex'r, v. Farwell.
    The holder of a promissory note may maintain an action against a guarantor without first proceeding against an utterly insolvent maker or obviously worthless security.
    Assumpsit, to recover upon a contract of guaranty. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1901, of the superior court by Peaslee, J.
    The plaintiff’s decedent owned a promissory note secured by a second mortgage of real estate in Minnesota, and indorsed as follows: “In consideration of one per cent per annum, I hereby guarantee the final collection of the within note and coupons attached. George N. Farwell.”
    The real estate was found by the jury not to be of sufficient value to satisfy the first mortgage claim, and it was admitted that nothing could be collected from the maker of the plaintiff’s note since its maturity — about two years before this suit was brought.
    The defendant demurred to the declaration, and moved for a nonsuit, upon the ground that the plaintiff must first proceed against the property and the maker of the note. The demurrer was overruled and the motion denied, subject to exception.
    
      
      Ira Oolby and Albert S. Wait, for the plaintiff.
    
      Hermon Holt, for tbe defendant.
   Blodgett, C. J.

Tbe verdict of tbe jury closes tbe question as to tbe availability to tbe plaintiff of tbe mortgage security; and tbe utter insolvency of tbe maker of tbe guaranteed note being admitted, tbe sole question raised by tbe case is whether tbe plaintiff was bound to first proceed against tbe maker and tbe security as a condition precedent tó tbe enforcement of tbe guarantor’s liability. We are of opinion that be was not.

• Tbe guaranty sought to be enforced was one of collection, and as such it constituted an undertaking on tbe part of tbe guarantor to pay tbe mortgage debt if, upon maturity, payment could not by reasonable diligence be obtained from tbe debtor or from tbe mortgage. So far tbe authorities are uniform; but what constitutes reasonable diligence in such a case is a question upon which tbe authorities are conflicting, it being held in some jurisdictions that such diligence requires the prosecution of tbe debtor and of tbe security to execution and return of nulla bona, and that bis insolvency, or tbe worthlessness of tbe security, is no excuse for a failure to prpsecute (Craig v. Parkis, 40 N. Y. 181; Salt Springs Nat’l Bank v. Sloan, 135 N. Y. 371; Bosman v Akeley, 39 Mich. 710; French v. Marsh, 29 Wis. 649; McNall v. Barrow, 33 Kan. 495, 496; Roberts v. Laughlin, 4 No. Dak. 167), while in other jurisdictions it is held that if tbe debtor be so utterly insolvent, or, tbe security so obviously valueless, that an action against either would manifestly be fruitless, tbe bolder of tbe guaranty may resort to a suit upon it without first instituting proceedings against tbe one or tbe other. Camden v. Doremus, 3 How. 515, 533; Gillingham v. Boardman, 29 Me. 79, 82; Dana v. Conant, 30 Vt. 246; Sanford v. Allen, 1 Cush. 473; Cady v. Sheldon, 38 Barb. 103, 111, 112; McDoal v. Yeomans, 8 Watts 361; McClurg v. Fryer, 15 Pa. St. 293; Jones v. Ashford, 79 N. C. 172, 176; Stone v. Rockefeller, 29 Ohio St. 625; Brackett v. Rich, 23 Minn. 485; Dewey v. Investment Co., 48 Minn. 130, 134; Fall v. Youmans, 67 Minn. 83.

Tbe latter doctrine we take to be tbe true one. “ Tbe law requires no man, in tbe pursuit of bis rights, to do a vain and futile thing, useful to nobody, and hurtful to' himself by the needless expense and trouble it would impose.” McClurg v. Fryer, supra; Haven v. Haven, 69 N. H. 204, 205; Lyman v. Railroad, 66 N. H. 200, 203. See, also, Beebe v. Dudley, 26 N. H. 249; Dearborn v. Sawyer, 59 N. H. 95, 97; Howland v. Currier, 69 N. H. 202, 203.

Hxceptions overruled.

Walker, J., did not sit: tbe others concurred. •  