¶1If the dates are correctly stated in the record, it is clear that this suit was prematurely commenced, as it seems to have been instituted in March, when the return of “no property,” against the maker, was not made until the month of August afterwards; consequent!}', no sufficient cause is shewn for this suit.
¶2The act of 1829, provides “ when judgment shall be recovered by the assignee or endorsee of any assigned bond, &c. [not payable in bank] and a writ of fieri facias is returned, 4 no property found,’ the assignee or endorsee, may commence his *395action against the assignor or endorser, and the return shall be sufficient evidence of the insolvency of the maker, to authorize a recovery on the assignment or endorsement,” Aik. Dig. 330, ..The act of the 15th January, 1828, authorized the maker and endorser to be sued in the same action, if the suit was commenced to the first term to which the maker' could be sued; if the suit was not thus commenced the endorser was entirely discharged, unless the suit was delayed by bis consent. So much of this act as required a joint suit against the maker and endorser, was repealed in 1829, and the statute recited substituted.
¶3Several decisions of this court, have established exceptions to the statute, in which suit may be commenced against the assignor or endorser, before the return provided by the statute is made; but the facts alleged in the declaration do not attempt to excuse the omission of the suit; they rather assume, that a. return of “no property,” at any time before the judgment against the endorser, will sustain the suit. This is not- warranted by the statute, for since its passage, no action can be instituted against the endorser of a note not payable in 'bank, without showing a suit against the maker prosecuted to a return of “ no property;” or without showing some sufficient excuse for the omission to sue.
¶4Let the judgment be reversed, and the cause remanded.