
    Beeler vs. Hall, adm'r.
    
    1 By the act of 1843, ch. 32, it is the duty of an officer having an execution in his hands to exhaust the property of the principal debtor before proceeding against the property of a surety or endorser. The relation of endorser or surety and principal must appear in the judgment and execution.
    2. When a surety seeks by certiorari and supersedeas to restrain the sale of his property till that of the principal debtor be exhausted, the process cannot be issued before a levy on the property of the surety.
    Hall, administrator, recovered a judgment before a justice of the peace against Stuart and Turner. It was stayed by Beeler. Stuart was surety, and Turner principal. This fact, however, did not appear on the face of the judgment or of the execution which was issued thereupon. No property of Turner having been found, it was levied on the property of Stuart. Beeler obtained an order for writs of certiorari and supersedeas to restrain a levy of the execution on his property, and the writs were issued and were returnedto the circuit court. Walker' presiding judge, on a submission to him of the matter in controversy, dismissed the writs and awarded a proce-dendo to the justice.
    Beeler appealed.
    
      Walker, for the plaintiff in error.
    
      
      S. E. Rose and Baxter, for the defendant in error.
   McKinney, J.,

delivered the opinion of the court.'

By the act of 1843, ch. 32, a surety or endorser, in order to entitle himself to compel the officer to exhaust the property of the principal debtor, before proceeding against his property, must, on the trial of the case, establish the fact of his relation as surety or endorser; and such relation must be recited in the judgment and execution, by the court, or justice of the peace trying the cause. If this be not done, the surety or endorser may be proceeded against in the first instance, by the sheriff or officer having process in his hands.

The judgment and execution in the present case against Turner and Stuart, show no such relation of principal and surety between the defendants ; ánd, therefore, Stuart is liable as a principal debtor; and, upon the facts in this record, Beeler, the stayor of the judgment, would have the right to require that the property of the former should be exhausted before proceeding against his property.

But notwithstanding this, the certiorari, was properly dismissed, upon the ground that it was prematurely sued out.

The officer had made no levy on the property of the stayor; but, as the petition shows, had, at most, only given cause to the latter to apprehend that he would do so. Until actual levy upon his property, the stayor had no legal ground of complaint.

The certiorari and supersedeas, in a case like the present, are used to remedy an injury or wrong actually done, and not as a proceeding quia timet, to prevent the doing of an anticipated wrong or injury. In this case, the judgment of the circuit court must be affirmed.  