¶1Perry, who was sued as indorser of a note, contends that he was released from his liability, because Davidson, the payee, against whom Shropshire had previously obtained a judgment'on the note, had property out of which the money could have been made by the use of proper diligence, and by the fact, that the officer to whom the execution had issued, neglected to make the levy, and made an illegal and false return, by which Shropshire could have forced him to pay the amount of the judgment.
¶2*155We do not think this position tenable. The indorser’s liability was fixed and secured, by the act of bringing suit against the payee, within the sixty days, as prescribed by the statute. (Hart. Dig., Art. 2529.) Upon default of payee, the indorser occupied the position of primary obligor, and if not satisfied with the diligence used by Shropshire, in the prosecution of the judgment, his remedy was open to discharge the liability, thus secured against him, and thereby become the equitable owner of the claim, reduced to a judgment. Judgment affirmed with ten per cent, damages.
¶3Judgment affirmed with damages.