— The instructions of the judge of the circuit court to the jury, may not be correct, if regarded as the assertion of an abstract proposition, but when considered in connection with the contract of the parties, we think them entirely unobjectionable. The bill of exceptions does not inform us that the proof, at the trial, failed to establish the contract as alleged in the declaration, or that, on that point there was any controversy, we must then intend, that it was satisfactory. The plaintiff in error then, agreed to pay to the defendant the amount of the notes and accounts transferred to him, in the event that he could not collect the same, “ after making an effort” for that purpose. An effort to collect, clearly does not imply that all the means known to the law, shall be exhausted, before the contract to pay shall become absolute, or the defendant be authorized to demand payment of the plaintiff. The condition on which the plaintiff’s liability depends, is certainly well perform*471ed, if such means of collection, by the aid of legal process, have been resorted to, as are usual. The contract did not impose upon the defendant, the duty of prosecuting suits upon the notes and accounts transferred to him, to such an extent as to force the parties liable to their payment, to take the oath of insolvency.
True, the judge in his charge, asserts that the return of “no property found,” is prima facie evidence of insolvency. Whether this be so or not, it is unnecessary to inquire, since, as we have shown, that it is evidence that such an effort was made to collect the notes and accounts as the contract requires.
The instructions to the jury are substantially correct, and the judgment of the circuit court is affirmed.