delivered the opinioh oe the Court.
The appellee sued the appellant as indorser of several promissory notes which fell due in July, 1893, alleging, in effect, the total and continued insolvency of the maker when the notes respectively fell due, and thereafter up to the time this suit was commenced.
To prove his allegation the appellee put in evidence several executions in favor of other parties, which were delivered to the sheriff in June, 1893, and returned no part satisfied in September, 1893. Also other executions which were in the hands of the sheriff most of the time between the return of the first and the commencement of this suit, with like returns.
A return of an execution unsatisfied, means that the defendant has no property which the sheriff can levy upon; it is sufficient to ground a judgment creditor’s bill upon. R. S., Sec. 49, Ch. 22.
The return being evidence of the fact, it matters not in whose favor was the execution, nor whether there was a judgment upon which it issued. The return is evidence because of a legal presumption that the sheriff did his duty upon process in his hands. He was not required to look behind the process for his authority to take the property of the defendant in execution, if any he had upon which a levy could be made. And as any real estate or personal property of the defendant could be levied upon immediately when the execution came to, and all the time it was in the sheriff’s hands, the. return is evidence of the condition of the defendant for the whole time the sheriff held the execution.
There being this absolute—not being contradicted—proof of insolvency as to the most of the time in question, presumption supplied the rest.
The court was right in instructing the jury to find for the appellee, and the judgment is affirmed.