
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    JOHN DUBERRY v. LEONARD K. CLIFTON AND EDWIN CLIFTON.
    
      \ v Equity.
    To enable a creditor to reach, by bill in equity, property fraudulently conveyed, he must first have recovered a judgment, and exhausted his legal remedies. [Changed by 1852, 365, 10 (Code 4288); Wilson v. Beadle, 2 Head, 510; Fay v. Jones, 1 Head, 442; 6 Cold. 526.]
    The bill stated that the complainant and Leonard Clifton were in partnership in North Carolina, and that disputes having arisen, they were referred to arbitrators; that the arbitrators awarded certain sums of money to be paid to the complainant by the defendant, Leonard, which had not been paid; and that he fraudulently, to avoid the payment thereof, conveyed his property to the other defendant, Edwin Clifton.
    The award of the arbitrators is exhibited with and makes a part of the bill. It states that a certain sum is due from Leonard K. Clifton to the firm, and that a certain other sum is due from Duberry to the firm. It also states what the firm owed, what was due to the firm, and what debts were desperate, etc. Upon the whole it remained very uncertain what was due from Clifton to Duberry, or whether anything.
    No suit had ever been brought on the award against Leonard K. Clifton.
    The prayer of the bill is for a decree against Leonard K. Clifton for the debt, and against Edwin Clifton for the satisfaction of it.
    Edwin Clifton demurred, and the cause was set down for argument upon the demurrer.
    Dickinson, for the defendant,
    urged that the award upon the face of it was wholly uncertain. It is also in other respects essentially defective, particularly in the want of mutuality. Hardin’s Rep. 411.
    A suit will not lie in this shape upon an award. It cannot be maintained against Edwin Clifton until a judgment is first obtained against Leonard K. Clifton. This step must he taken and an execution actually sued out before the property can be reached in the hands of Edwin Clifton, although the conveyance is fraudulent. 1 Vern. 399.
    
      Cooke, for the complainant,
    declined an argument upon the ground that the hill could not be supported.
   White, J.

The Court is of opinion that the demurrer ought to be allowed, for several reasons.

The award does not certainly show how much or whether anything is due from L. K. Clifton to the complainant, nor does it contain any statement from which either of these points can be rendered certain. Whether there was any stock in trade, — how many of the debts of the firm were desperate, — and, in fact, as to the whole matter in dispute we are left entirely uncertain. Again, the bill is founded solely on the award: there has been no recovery of any sum against L. K. Clifton. The object of the complainant seems to have been, first to obtain a decree against him for the debt and then a decree for its satisfaction from E. Clifton. This cannot be done. The complainant ought first to have recovered his demand at law against L. K. Clifton, proceeded as far as he could in the collection of it, and if owing to the fraudulent contrivance of L. K. & E. Clifton he could not obtain satisfaction, then, and not before, come into this Court. 1 Vern. 398. Let the demurrer be allowed and the bill dismissed. '

Oveeton, J. concurred.  