
    
      Scott vs. Wallace.
    
    October 22
    Error to the Jessamine Circuit; ff*. L. Kells', Judge.
    
      Chotes in action. Creditor and debtor. Judgment.
    
    Chancery. Case 187.
    Creditor must obtain a Judgment and have a fieri facias returned null? bona, before he is entitled to pursue the phases in action of his debtor.
    
      Hoggin, for plaintiff; Crittenden, for defendant.
   Judge Buckner,

delivered the opinion of the court.

This was a bill in chancery, filed by Wallace, against Scott and Livingston, in which, he alleges that he had paid a certain sum of money, for Livingston, as his surety; for which he had then a suit depending, by motion, against Livingston, that Scott was indebted to Livingston (who was otherwise insolvent) in the sum of $80, in notes on the bank of the commonwealth of Kentucky; and prays for a decree against Scott, for the amount of his demand, against Livingston.

Scott answered, denying that he owed Livingston bank notes; but acknowledging, that he had owed hi u, the sum of $59 91, which he had discharged except as to $10, which he still owed.

The circuit court entered a decree, in favor of Wallace, against Scott, for $58 and costs; giving the latter, a credit pro tonto, against Livingston; to reverse which, this writ of of error is prosecuted.

It is unnecessary to determine, whether injustice was done to Sc.olt, by decreeing against him, for a larger amount, (han he was indebted; as it is clear, that the chancellor could not properly entertain jurisdiction of the case; no judgment having been obtained by Wallace, against Livingston.

The decree of the circuit court must be reversed, and the cause remanded to that court, with directions to dismiss the bill without prejudice to the rights of Wallace.  