Craig v. Fessenden , 21 Me. 34 ( 1842 )

The opinion of the Court was by

Shepley J.

—The statute c. 59, <§> 8, provides, that the indorser shall be liable in case of the avoidance or inability of the plaintiff to pay the defendant all such costs as he shall recover. It has been decided, that proof, either of avoidance or of inability, is sufficient. And that the return of an officer on the execution, that he has made diligent search for property and cannot find any within his precinct, is conclusive evidence, that the debtor in the execution had no property within that precinct; although such return affords no proof, that he had not sufficient property in other towns or counties. Harkness v. Farley, 2 Fairf. 491. The testimony in this case did not prove, that the debtors had any property in this State out of the county of Cumberland; and it was inadmissible to prove that they had property within that county. The defendants being precluded from showing that the debtors had property in the county of Cumberland are liable as indorsers.

Nonsuit set aside and defendants defaulted,