
    
      Rich, &c. vs. Catterson.
    
    Chance»*.
    Error to the Henry Circuit; Henry Davidge,- Judge.
    
      Jurisdiction. Proceedings against insolvent debtor. Statute. Nulla bona. Choses in action.
    
    June 30.
    a creditor cannot attach {insolvent debtor, by bill inequity,and hídebtor^s insolvency. There must be a return of execution, The law ac-thorizing pro-gainst absent def’ts. does not apply to cases of rm-debtors,
    
      Monroe, for plaintiffs.
   Judge Underwood

delivered the opinion of the Court.

Catterson filed bis bill against Rich and Rawlings, alleging that he held anote of hand or bond, executed by Rawlings to him, for a valuable consideration, amounting to more than' $100, and which he had lost; that Rawlings was insolvent, and that Rich owed Rawlings $100; wherefore he prayed that his lost note might be set up, and Rich decreed to pay what he owed Rawlings, in discharge of it, as far as it might go. The bill was taken for confessed and a decree rendered conforming substantially to the prayer of the bill. The decree is erroneous. According to the case of M’Ferran vs. Jones, &c. II. Lift. 222, Catterson could not reach or attach by a proceeding in chancery, the debts due Rawlings, unless in conformity to the provisions of the statute, subjecting choses in action, after a return of nulla bona9 on an execution, bee, also, Buford vs. Buford, I. Bibb, 306. The laws authorizing proceedings against absent defendants, do not apply to the present case. The only relief, therefore, which the court should have afforded the complainant was, to set up his lost note, and to decree its amount, subject to the credit admitted against Rawlings. The bill, as to Rich, should have been dismissed with" costs.

Wherefore, the decree of the circuit court is reversed, and the cause remanded, that a decree may be rendered in conformity to this opinion.

The plaintiffs must recover their costs.  