— The requisites to charge the endorser of a note, of the description stated in the declaration, are defined with much precision by the statute. When the sum due on the note is more than fifty dollars, the endorsee must commence a suit against the maker, at the first term of any Court of the county where he resides, to which it can be brought. Judgment must be recovered, and a writ of fieri fa-cias returned by the proper officer, no property found. (Aikin’s Digest 330, s. 12, 16.)
These matters are evidently intended to stand in the place of the demand of payment from the maker, and the notice to the endorser, which were previously required by the law merchant. It seems to have been intended also, to establish a fixed and definite rule, by which every one might easily know his own liability, or enforce his claims against others. The statute does not make the liability of the endorser depend on the insolvency of the maker. This it might be difficult to establish with certainty, and it might in all cases be made the subject of dispute; therefore, the enactments have made the return of no property to a writ of fieri facias, one of the essential matters to fix the liability of the endorser. If the time when this matter was to be ascertained, had been considered as important, the Legislature doubtless would have determined it by some precise rule; but this has not been done, and wé can perceive no good reason why it should be extended beyond the period enacted by the statute, which we consider to be the date of the return.
The essential matter to be ascertained by the return, is that the maker of the note has no property to satisfy the judgment; and this can be as well ascertained at one time as at another. Whenever the proper officer can truly make Jhis return, he is authorised to make it; and thereupon the liability of the endorser becomes complete, if the necessary steps have been pursued.
There is a striking analogy between the contract of bail and the contract made by an endorser, under these statutes. The former agrees to surrender his principal whenever a ca. sa. shall issue. The latter contracts that the maker will have a
“‘Most of the reasons adduced by the counsel for the plaintiff in error, would be equally forcible to show that the return to the sheriff might be impeached, if the object of these statutes is to give time to make the money from the property of the maker. The case of Goodell vs. Stuart, 2 H. & M. 105, is decisive, however, to shew that the return, whether,! true or false, ascertains the liability.
We have not adverted to the cases in chancery cited from Paige, because there is a material distinction between the ascertainment of a liability, in the mode appointed by.the statute, and the pursuit of an equitable remedy. In the first, the rule is fixed and arbitrary, whilst in the latter, it is dependent on a long course of decision peculiarly connected with the jurisdiction of the Court.
If the sheriff, in a case like the present, makes a false return, and thereby a liability is cast on an endorser, he has a clear remedy; and this would be so without reference to the time when the return was made.
We entertain no doubt of the correctness of the decision of he Circuit Court, and its judgment is affirmed.