By the rules of the law merchant, in order to fix the liability of an indorser of a promissory note, it was necessary to make demand of payment of the maker, and upon his refusal to pay, to give notice to the indorser; these things being done, the liability of the indorser was fixed, and he might be forthwith sued, without taking any further proceedings against the maker.
Our statute has altered the law merchant in this respect, and in order to charge the indorser of a promissory note, not negotiable in bank, the indorsee must sue the maker in the county of his residence, to the first term of any court to which the suit can be properly brought, after the note falls due ; or if it be indorsed after maturity, then to the first court after such indorsement is made, and upon the recovery of a judgment, and the return of no property made by the sheriff on the execution issued thereon, then he can sue the indorser.
The liability of an indorser is not fixed by commencing suit, and recovering judgment; but the return of the sheriff, “ no property,” on the execution issued on the judgment, is a pre-requisite to the indorser’s right of action. Reese v. White, 2 Ala. Rep. 306. It is true, that the law requires no other evidence of the insolvency of the maker, than the commencement of the. suit to the first term to which it can be properly brought, the recovery of judgment, then the issuance of execution, and the return of “no property” by the sheriff. But in our opinion, due diligence should be used, not only to recover the judgment, but after it is recovered, to have execution issued, and the return of “ no property” made by the proper officer. The statute does'not prescribe at what time execution shall issue after the rendition of the judgment, but we think the spirit and intent of the act is, that the in-dorsee shall use ordinary diligence in prosecuting the note to judgment, after the suit is commenced; and after judgment is rendered, in procuring the return of no property on the *522execution; and that unreasonable delay, or negligence, in prosecuting the suit, or having the execution returned “ no property,” will discharge the indorser. For until this return is made, the liability of the indorser is not fixed. And although the indorsee may use due diligence in performing the first pre-requisite to the liability of the indorser, yet this will not excuse negligence, or laches, in performing the other. The judgment was rendered in due time, and the original fi. fa. duly issued, but it never was returned by the sheriff. Yet the defendant in error, under our statute, could have issued an alias, notwithstanding the original never was returned. Spence v. Campbell, 4 Ala. 543; The Bank at Montgomery v. Curry, at the last term. The defendant in error, however, neglected to have an alias issued for nearly two years after the term of the court to which the original was returnable ; during all this time the liability of the indorser was conditional; and if the indorsee can neglect to sue out an execution fqr two years, and then do it, and fix the liability of the indorser, may he not at almost any distant period of time ? We think such a construction would be opposed to the intention and spirit of the act. The act does not prescribe the degree of diligence the indorsee shall use, in prosecuting the suit after it is instituted; nor when the judg-' ment shall be rendered, or the execution returned “ no property.” We think this was properly omitted by the legislature, for any fixed rule prescribing when the jndgment should be rendered on theji.fa.and returned no property, might frequently discharge an indorser, without laches, or neglect on the part of the indorsee, But as the statute does not prescribe the diligence to be observed by the indorsee, after suit brought, he is therefore bound to ordinary diligence.
We therefore hold, that the omission of the defendant in error, to sue out an alias execution for nearly two years after the term to which the original was' returnable, in "the absence of any excuse for such neglect, discharges the indorser from liability. In this conclusion we are sustained by the authorities in the cases of Bishop v. Beazly, 6 Black; 127 ; 1 Bibb, 542 ; 4 Peters’ Sup. C. Rep. 366; 6 Leigh’s R. 386.
It has also been contended, that the failure of the sheriff to return the execution, whereby he was made liable to the *523plaintiff for the amount thereof, discharges the indorser. We should be inclined to differ from the plaintiff’s counsel upon this question, but as the judgment must be reversed on the first question, it is not necessary to examine the other.
Let the judgment be reversed and the cause remanded.