By the covenant in the mortgage, Murrell undertook to sue Haniman and Bates to insolvency, before he resorted to his right of enforcing the mortgage on the land. The meaning of this certainly is, that he sh,all exhaust the ordinary legal remedies provided for the collection of debts before proceeding on his mortgage. In. Trotter v. Crockett, [2 Porter, 410,] it was held that judicial insolvency could only be ascertained by issuing a capias ad satisfaciendum. At the time that de-cisión was made, a ca. sa. issued as a matter of course, upon the request, or by the direction of the plaintiff but by the act passed February 1, 1839, to abolish imprisonment for debt, this process cannot issue but in certain cases, and not then, without an affidavit, which it may not be in the power of the party to ma.ke.— Nor is it necessary that proceedings should be instituted against the sheriff to ascertain v hether his return is not false; all that was contemplated by the covenant was, that a suit should be instituted against Bates & Haniman, and the usual process - of the law resorted to, to recover the debt.
If, however, it was impossible to sue one or both the parties, from his removal from the State, his insolvency could be ascertained in some other mode, and such an allegation would dk-*663pense with the necessity of proving that a suit had been brought. Such has been our interpretation of the statute, defining the remedy on assigned notes and obligations. ' That, although the act requires the maker to be sued to the first court after the note falls due, to hold the assignor responsible: yet, if from the absence of the maker from the State, the suit cannot be brought against him, it would be dispensed with. [Woodcock v. Campbell, 2 Porter, 456.] When parties within this State, stipulate that a suit shall be brought, they must be understood as referring to our own tribunals, and if this becomes impossible, without the act of the party who is to bring-the suit, he is discharged from the performance of the covenant. The meaning of the covenant is, that he will bring the suit if in his power to do so; it is not an undertaking to do so at all events, as a condition precedent to his right to recover on the mortgage.
It is alleged in the bill, that suit was brought against Haniman, and that he was prosecuted to insolvency, and in our opinion, This allegation is not sustained by proof that he absconded from the State insolvent, and that suit could not, therefore, be brought against him. If the prosecution of a suit became impossible from the absconding of the person to be sued from the State, the fact should have been stated as an excuse for not suing. This has been the decision under the act of 1828, regulating the liability of endorsers of paper not mercantile, before referred to, which is precisely analagous to this covenant. This is net like the case of an averment in a declaration on a bill of exchange, of due notice of its dishonor, which would be satisfied by proof against the maker, that he had no effects in the hands of the drawee, because his knowledge of the fact, is notice.
In regard to the sufficiency of the proof against Bates, we consider the answer of the counsel lor the defendant in error, as conclusive. The record of the suit against Bates, was the best evidence of the fact, that a suit had been brought, a'nd this the party had a right to insist on, but if he permitted inferior testimony of the fact to be given in evidence 'in the court below, be must be understood as waiving all objection to it on that score, and cannot make it here. This has been repeatedly held by this court, and the rule is the same in equity as.at law. The injustice of permitting the objection to be . made here,.will be apparent when we ■consider, that if it had been made in the primary court, it could *664have been immediately removed by the production of the record, and probably was not made for that reason.
The decree of the chancellor is reversed, and the cause remanded, that the complainant may obtain leave to amend his bill, if he thinks proper to do so.