
    *William Eddings, Endorsee, v. John S. Glascock.
    A return of nulla bona on a Ji. fa. is not evidence of insolvency, nor of incapacity to pay.
    Summary process on a note for $50. Tried at Edgefield Court House, Fall Term, 1818, before Judge Colcook.
    The note was in these words: “Due John S. Glascock, fifty dollars, value received, 29th December, 1815. Signed Allen Elliot. Test, John Randolph.”
    On the back of the note was written, “ I endorse the within note to William Eddings, under tire following proviso, viz., I am to be accountable for tbe said amount, provided it cannot be made out of Allen Elliott. Signed, JohnS. Glascock, 24th April, 1817.” On the lltk September, 1817, the plaintiff issued an attachment, which was not levied — afterwards a summary process was issued, on which there was no date of the time when lodged, which had been returned non est inventus. On this process was written an acceptance of service, for March Term, 1818, and a confession of judgment for debt and interest. A ft. fa. was lodged on the 25th March, 1818, and returned nulla bom, 31st November, 1818.
    
      Stark, Solicitor, M’Buffie, and Ellison, for the motion. Glascock, contra.
   The opinion of the Court was delivered by.

Colcock, J.

The terms of this endorsement are very clear and express, and the plaintiff was bound by them to prove that the money could not be made out of Allen Elliott. The production of the execution, and the return of nulla bona, are by no means satisfactory evidence of this. A man may be rich, and yet have no property which a sheriff can reach ; nay, he) may have property about him constantly, money in his pocket, which cannot be touched by the sheriff, when, if a ca. sa. were served on him, he might be compelled to pay the debt. Suppose the case of a man, residing in a neighboring district or State, sued in Edgefield — *the sheriff cannot cross the line and levy his execution; and this appeared to be a case of this character.

In the ease of Walker v. -, decided in Chester, at the-sitting, it was determined that the return of nulla bona was no evidence of insolvency ; for the same reasons, it will not be considered in this case as evidence of an incapacity to pay. #

The motion is therefore discharged.

Cheves, Gantt and Johnson, JJ., concurred.

8 Rich.. 436; Harp. 438.  