Oiiief Justice Kobertson delivered, the opinion of the Court. Had it clearly appeared that, notwithstanding the official return of nulla bona, the assignee knew that the obligor had properly which might be subjected to an execution on his judgment against him, it might have been his duty to proceed against that property, before he would be entitled to recourse on his assignor. But proof merely of the fact that there was such estate, was insufficient to repel the presumption of legal diligence, and good faith, implied by the Sheriff’s return that no property could be found.
The Circuit Court did not err, therefore, in rejecting proof of the latter fact only. Wherefore, as this is the only question involved in this case, the judgment is affirmed.