#### Tolson v. Elwes.

October, 1829.

Executions — Assignment—Right of Assignee to Bring Motion in His Own Name against Sheriff.* — Execution sued out in the name of W. indorsed for benefit of E — held that E cannot maintain a motion in his own name against the sheriff lor amount levied on the execution or for his default in service and return of the writ.

A writ of fieri facias, sued out of the circuit court of Stafford, dated the 23d October 1823, and returnable the second Monday in January following, in the name of Wallack, but indorsed “for the benefit of *156Elwes,” against Simms and Flournoy, for debt, interest and costs, for which Wallack had recovered judgment against them, was delivered to Beatty deputy of Tolson late sheriff of Stafford, who made the following return upon it — “By virtue of this execution, I levied, and advertised according to law, the following property, to wit, Stock of horses, cows &c. household furniture, and plantation utensils: the sale of which was prevented for want of bidders. (Signed.) R. Beatty deputy for B. Tolson sheriff &c. ”

Upon this, a writ of venditioni exponas, dated the 18th April 1825, and returnable the first day of May term following, was sued out, and delivered to the same deputy.

This process also ran in the name of Wallack, but was indorsed *“for the benefit of Elwes.” The deputy made the following return upon it — “Levied this execution, together with two others which had previously come to hand, on the following property, subject to sundry taxes and levies due to me, to wit, One bureau &c. ” (enumerating divers articles of household furniture, and one cow and nine hogs) ; “all of which I sold according to law, to the highest bidder, the 16th May 1825, for 130 dollars 92 cents; which sum was applied to the discharge of two executions which came to hand previously to this, namely, one in favor of the representatives of John Bronaugh, and the other in favor of Ephraim Brent; and the balance of the amount of sales is retained to satisfy in part taxes and levies due me. This execution was also levied on the following property, which could not be found on the day of sale of the above-mentioned property, to wit, Two horses &c.”) enumerating a few cattle and hogs, and some farming utensils); “which, when sold, shall be applied in part thereof. I had also levied on the following, to aid in discharge of this execution, to wit, One round tea table &c.” (enumerating sundry articles of furniture and plate, a few cattle, mules and sheep, and some farming utensils) ; “which last mentioned property X am advised has been enjoined by Mr. Brent and others, as not being liable to the discharge of the debts of the said Simms, and which X cannot sell, unless I am indemnified m the sale thereof. (Signed) R. Beatty deputy for B. Tolson sheriff &c. ”

Hereupon, Elwes, for whose benefit these two writs had been sued out, gave a notice, in his own name, to Mr. Tolson the sheriff, that he would move the circuit court for judgment against him, for the full amount of the debt, interest and costs, mentioned in the venditioni exponas, with 15 per cent, per ann. interest thereon from the return day thereof until paid, according to the provisions of the statute, 1 Rev. Code, ch. 134, § 48, p. 542.* And upon • the motion *made by Elwes pursuant to this notice, the circuit court gave him judgment, for 180 dollars 83 cents (the amount due on the venditioni exponas) with 15 per cent, per ann. interest thereon from the return day of the writ, and the costs of the motion. From which judgment Tolson appealed to this court.

The cause was argued here, by Harrison for the appellant, and Patton for the appellee.

Several points were discussed at the bar, which the court did not find it necessary to consider or decide. Among these was the question, Whether, as the statute gives this summary remedy by motion, only in case of such returns made by the officer, as entitle the plaintiff to recover against him, in an action of debt, the debt, damages or costs, mentioned in the execution, an action of debt might have been maintained against the officer upon the returns made on the executions in this case? And Carr, J., intimated an impression, but not a decided opinion, that debt would not lie: but the point was not decided, nor did the other judges give any opinion concerning it. The case eventually turned on the question, Whether Elwes, for whose benefit the execution *was sued out, as appeared by the indorsement upon it, could maintain the motion, in his own name?

Harrison insisted, that, as the statute giving this summary remedy, at once dispenses with the ordinary course of the common law, and inflicts a heavy penalty in the form of interest allowed on the debt, it ought to be construed strictly. The statute gives the motion to the creditor at whose suit the execution shall issue. Now, Wallack, not Elwes, was that creditor. He alone was the plaintiff on the record: he alone could maintain debt or scire facias on the judgment: and if a forthcoming bond had been taken, tit must have been made payable to him; and he alone could have moved for an award of execution upon *157it. That the execution was indorsed “for the benefit of Elwes,” could not help the case. It did not appear, that that indorsement was made by Wallack or by his direction, and it might have been the act of Elwes himself; and if it was the act of Wallack, it was not an assignment of the judgment or of the execution to Elwes; and indeed, neither of them was by law assignable, nor could a court of law take any notice of such an assignment. If the return afforded any foundation at all for such a motion, there could be no doubt, that Wallack might have made it; and if so, the judgment for Elwes could present no bar to a future motion by Wallack.

Patton said, that though originally choses in action were held not assignable either in law or equity, yet the broad ground was soon taken, that all such assignments were good in equity; and then it was held at law, that though such assignments do not transfer the legal title, they transfer every thing else; that they authorise the assignee to sue in the name of the assignor, and the assignor cannot control the proceeding; that the assignor’s legal right is merely subservient to the equitable right of the assignee. Garland v. Richeson, 4 Rand. 268. Our statute gives the assignee of a bond or note a right to sue in his own name, but it does not change the nature of his title, for his title is still *not a legal but only an equitable one. Ibid. In the present case, the court must intend, that the indorsement on the execution, that it was for Elwes’s benefit, was made by the clerk; and that, in making it, he was governed by the record, which shewed that the suit had been prosecuted for his benefit; for such is the constant practice and course of business. And then, as Elwes was the creditor in fact, at whose suit the original writ was purchased, so he was the creditor at whose suit the executions issued. Certainly, the sheriff was bound to take notice of the indorsement, and to account to Elwes for the money. If Wallack had a right to control the execution, or to receive the money made upon it, the right of an assignee to proceed in the name of the assignor to recover the debt assigned, is reduced to notning. Elwes was ‘ ‘the party to whom the money was payable,” in the strictest sense of the statute in question; the party" to whom the injury accrued by the failure of the sheriff to make the payment, for which the statute gives the summarj' remedy. Could the statute have been intended to give the remedy, not to the party injured, but to the plaintiff on the record who is not injured? The statute does not give the motion to the plaintiff on the record, but to the creditor at whose suit the execution issues. Let its language be scanned : whenever the return is such as to entitle the plaintiff to an action of debt, then, not the plaintiff, but the creditor at whose suit the execution issues, whoever he may be, may move against the delinquent officer. This motion was not a proceeding to enforce the execution of Wallack’s judgment; the execution was consummate; and the motion was made to recover the money of the sheriff, for his default, by the party to whom the injury accrued.

*

Executions- -Assignment — -Right of Assignee to Sue in His Own Name. — In the principal case it is held that a person for whose benefit an execution is indorsed cannot maintain a. motion in his own name against the sheriff, for the amount levied on flu-execution.

In Burnett v. Harwell, 3 Leigh 89, the principal case is cited at page 92, and it is held that an action cannot be maintained on an executor's bond, at r« relation of an assignee of a legatee..! i i ecree <>i a legacy, such action can only be maintained at, the relation of the person who has the legal right, to the debt. Also, In Poage v. Bell, 8 Leigh 604, citing *156the principal case at page 607, it is held that the *cestui ave trust*cannot maintain an action at law, in his own name against a party converting the property, hut the action will lie only at the suit of the trustee.

Upon the authority of the principal case it is held in Leightons v. Hinchman, 1 Gratt. 157, that an ac tion against a high sheriff and his sureties, upon his official bond, for the misconduct of his deputy in his proceedings on an execution in his hands, must be at the relation of the plaintiff in the execution: and cannot be sustained, at the relation of the parties for whose benefit the execution is issued. The principal case is also cited in *note*to the same case. See monographic *note*on "Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.

*

The statute provides, that “if any sheriff, under sheriff or other officer, shall make return upon any writ of fieri facias or venditioni exponas, that he hath levied the debt, damages and costs, as in such writ required, or any part thereof, and shall not immediately pay the same to the party to whom the same is payable — or shall make any other return upon any such execution, as will shew that such sheriff, under sheriff or other officer, hath voluntarily and without authority omitted to levy the same, or as would entitle the plaintiff to recover from such sheriff or other officer, by action of debt, the debt, damages or costs, in such execution mentioned, and such sheriff or other officer shall not immediately pay the same to the party to whom it is payable or to his attorney — then, or in either of the said cases, it shall and may be lawful for the creditor, at whose suit such writ of fieri facias, venditioni exponas. &c. shall issue, upon a motion made in the next succeeding general court, or other court from whence such writ shall issue, to demand judgment against such sheriff, under sheriff or other officer, or the securities of either of them, or their legal representatives, jointly, for the money or tobacco mentioned in such writ, or so much as shall be returned levied on such writs of fieri facias or venditioni exponas, with interest thereon, at the rate of 15 per cent, per ann. from the return day of the execution, until the judgment shall be discharged &c." — Note in Original Edition.

CARR, J.

At common law, we know, choses in action were not assignable; nor could courts of law formerly take any notice of the equitable where it was distinct from the legal right. Courts of equity, however, held those assignments good, and enforced them; and, in later times, courts *of law have so far relaxed, as, in some instances, to notice the equitable right. Thus, they will not suffer the assignor, whose name is used by the assignee in suing, to dismiss or in any way control the suit. Again, if the real owner of the debt, though not plaintiff on the record, be indebted to the defendant, the court will allow the defendant to set-off this debt against that for which -he is sued. Thus the law stands in England, where there is no law permitting the assignment of choses in action. But the courts of law have never gone so far as to suffer the assignee to institute a suit in his own name. (I am not speaking of bills of exchange assignable *by*the law merchant, or of promissory notes made so by the statute of Anne, but of mere choses in action as contradistinguished from commercial paper.) Our statute declares “assignments of bonds, bills and promissory notes, and other writings obligatory whatsoever, valid, and that the assignee may sue in his own name” &c. 1 Rev. Code, ch. 125, § 5, p. 484. It will be seen at once, that judgments and executions are not embraced by this statute : they, therefore, remain as at common law. And it may be laid down, as a general proposition, that in no proceeding to carry *a.*judgment or execution into effect, can the name of the transferee be substituted for that of the plaintiff upon the record. But this proposition, deduced from the general principles of law, is still more clearly and strongly established by the particular statute under which this motion is made; by the words of which, the motion is give to. the creditor at whose suit the execution shall issue. This, it seems to me, can mean no other than the plaintiff on the record. I' think, therefore, this motion could not be maintained in the name of Elwes.

This point being sufficient for the reversal of the judgment, it is not necessary to give an opinion on the other points discussed at the bar.

The other judges concurred, and the judgment was reversed.