540 WATKINS v. WORTHINGTON.

vent; because he is in that condition in which his creditors must
lose by him (j)

A release, provisional or final, under the bankrupt or insolvent
laws, furnishes at least, prima facie evidence of this condition of
insolvency which gives to the creditor a right to demand satisfac-
tion from the estate of the surety; and to one surety to claim con-
tribution from his co-surety. It has been said, however, that in
the absence of such proof as this, the creditor must shew, that he
has brought suit against the principal, and has been unable, by
execution, to extract satisfaction from him. The return of nulla
bona, however, to a fieri facias, proves no more than that the
sheriff, if he has done his duty, has been unable to find any pro-
perty of the defendant within his county; and yet the defendant
may be wealthy, and have a large amount of property elsewhere;
or of a kind not within reach of the fieri facias, (k) But if proof
of this description were required, then, as it is of a kind which the
creditor can only put together and create by due course of law, it
would seem to follow as a necessary consequence, that he should
be allowed time thus to fabricate it. If so, it would be enough, at
least, for this purpose, that he should bring his suit before his
claim had been barred by the statute of limitations; and that may
be when he files his claim in this court. There may be, and often
are, many creditors whose claims are founded on joint and several
obligations; and which will, therefore, require some proof. Now
if the final distribution of the deceased's estate were to be sus-
pended until full proof of this kind, by judgment and execution,
could be fabricated; the delays might be almost interminable.
Proof of this description, however, where it actually exists, shew-
ing a failure to obtain satisfaction by an execution, running over a
county where the debtor resides, or within which, if at all, he must
be presumed to have some property, may be received as sufficient
prima facie evidence of insolvency, to found the creditor's claim
upon the deceased's estate; but such proof never has been, nor
ever ought to be held to be indispensably necessary. (l)

In the great majority of cases it would be impracticable, or
exceedingly tedious and expensive, to procure any other proof of
insolvency, than that of general reputation in that part of the coun-
try where the debtor resides, and is known. Where the debtor

(j) Kames' Pri. Eq, b. 3. c. 5.—(k) Goodall v. Stuart, 2 Hen. & Mun. 105.—
(l) Spurrier v. Spurrier, 1 Bland, 476.