delivered the opinion of the court.

This was an action brought by the plaintiff in error, the last *641indorser of a promissory note, made by one Thomas, against the intestate of the defendant in error, the first indorser of the same note. Judgment had been rendered against the maker and the plaintiff in error, on which execution was issued, and returned “nulla bona.” The judgment was then paid by the plaintiff in error to the agent of the plaintiff, while an execution thereon was in the hands of the sheriff; and this action was thereupon brought to recover from the first indorser the money so paid.

On the trial, the plaintiff offered in evidence the judgment and execution, and proposed to prove payment made by him to the agent of the plaintiff in the execution; which evidence was objected to, on the ground that it was not shown that any affidavit of the insolvency of the maker of the note had been made when the money was paid. The objection was sustained, and the evidence excluded; and the plaintiff excepted.

The only question to be determined is, whether, with reference to the provisions of the Act of 18th of May, 1837, (Hutch. Code, 852,) a subsequent indorser is justified in paying a judgment rendered against the maker and himself, without an affidavit of the insolvency of the maker; and whether, if he make such payment under such circumstances, he can recover the money from the maker or a prior indorser. And we are satisfied that the affirmative of these propositions is true.

The provisions of the Act of 1837 referred to, apply to and regulate the proceedings of the sheriff in levying executions against makers of notes and acceptors and drawers of bills, who may be-sued in the same action with the indorsers. The object of these-provisions was the protection of indorsers from compulsory payment of executions against them, until the legal remedy against the other defendants, primarily liable, should be exhausted. This-was intended for the benefit of indorsers, and it would be a perversion of the spirit of the statute to give it an' effect to their-prejudice.

"When the statute was passed, an indorser had the unquestionable right to go forward at the maturity of paper and take it up, when the maker or drawer had failed to do so. And this right is clearly not taken away by the statute. Upon the same principle, *642he had the right to pay and satisfy a judgment rendered against him on the paper; and in both these cases, the payment would have entitled him to recover against a prior party to the paper, who was liable to him by law. . And it cannot be supposed that the right to make a voluntary payment of such a judgment was intended to be taken away by the statute. For it might happen, that the plaintiff would not make the necessary affidavit, and no other person might be found who would make it. In such a case, what would be the condition of the indorser, and what course should he pursue? It cannot be that the statute contemplates that he should make the affidavit; for it would be absurd to suppose that he should be compelled to make an affidavit, in order that an execution might be levied of his own estate, or he might be unable, conscientiously, to make it. There would, then, be no affidavit; and in such case, the indorser would be compelled to submit to having an unsatisfied judgment in force against him, with all the .discredit and injury which might arise from it.

It is manifest, that a construction of the statute, leading to such .a result, was never contemplated, and should not be sanctioned. To sustain such a construction, would be to deprive the indorser of a privilege which he had when the statute was passed, and to pervert a statute, intended for his protection and benefit, into the means of injury. And we are satisfied that it was never intended to deprive the indorser of the power of doing anything that he might legally have done for his own protection, at the time of the passage of the statute.

The evidence offered by the plaintiff was, therefore, improperly excluded; and the judgment is reversed, and the cause remanded for a new trial.