#### Lewis Ciples et al. Sureties of Goodwyn, Sheriff, *v.*John J. Blair et al.

Costs -which have accrued and become due to an officer of a court, (as a clerk of the common pleas,) are the subject of assignment, and the assignee has a right to claim them from the parties liable to pay them, and to follow them into the hands of an agent, (as a sheriff,) who may have collected them.

The right of the assignee to receive the amount collected by the sheriff, is not affected by the circumstance of the sheriff’s becoming a general ered itor of the assignor, by a payment made on his account subsequent to the assignment.

*61*Before JOHNSON, Chancellor, at Kershaw, June Term, 1838.*

This case came up on a motion to reverse or modify the decree of the chancellor. The facts will appear from the following statement and the decree of the chancellor, which is subjoined:

“The claim of John J. Blair, assignee of Thomas P. Evans and J. M. Desaussure, arises in the following manner. ' Evans was clerk of the court of common pleas, for Kershaw, many years, and Blair was appointed his deputy, 20th October, 1829, with an agreement to receive one-half the fees of office.

On the 2nd April, 1830, Evans assigned to J. M. Desaussure by deed, his whole real and personal estate, together with all his choses in action, particularly all costs due him as clerk aforesaid. Omthe 20th September, 1832, Desaussure assigned and sold to Blair all said costs, a large part of which costs so assigned, were collected and received by sheriff Goodwin, on executions in his office, and the claim now filed by Blair, is to recover these costs from the sureties of Goodwin, who never paid them over, and is now dead. Complainants are his Sureties.

In 1826, Bullard & Burr, merchants of Camden, failed in business and assigned all their assets to R. Bullard, by deed, to pay the debts of the firm. In 1827, R. Bullard, assignee, filed a bill against Beers & Bunnell et al., creditors of Bullard & Burr, to come in and establish their claims, and to appoint Evans, commissioner in equity, *receiver and collector of*the assets. Evans was appointed *receiver,*but never gave bond as such — he collected the assets, but failed to pay them to the creditors.

Bullard turned over to Evans as receiver, the assets, on the 29th August, 1827, amounting to #2070. The bill was then transferred to Charleston, by order of the court of equity of Kershaw, and on 14th January, 1828, an order was passed requiring Evans to transfer to the master in equity in Charleston, the assets of Bullard & Burr, and to pay him the money collected, and ordering the master to report the amount of the assets and the debts established. On the 29th January, 1830, he reported the assets at #2026 71, being the sales, &c.; and the debts established, he *62reported at $1447 09, and afterwards, in February and May, 1830, he reported additional debts at $795 05, total $2242 14, which reports were confirmed and the debts ordered to be paid.

On the 16th January, 1830, Evans was ordered to show cause on the 27th insta'nt, why he had not obeyed the order of the court, to transfer the assets of Bullard & Burr to the master in equity in Charleston. On'the 27th instant, this rule was made absolute.— On the 30th April,Í830, Goodwin, sheriff of Kershaw, was ordered to show cause, on tire 15th proximo, why he should not be attached for a contempt in not having executed an attachment against Evans, late commissioner, and returnable to that term. ■

On the 30th June, 1830, Tupper & Kimball, N. Montross, L. Galpin and George Olney, assigned to *E. J. Brevard, H. J. Cantey*and *L. Boyldn,*all their rights and interests, under the decrees ordering their debts to be paid out of the assets of Bullard & Burr, in the case of R. Bullard, assignee, v. Beers & Bunnell'et al.

J. S. Colburn, Bentham & Dunkin, Thomas J. Gantt, M. I. Keith, C. M. Furman and J. S. Bailey, also assigned to same parties their interests under same decrees, undated.

The attachment was issued against Evans, 6th March, 1830, and placed in the hands of sheriff Goodwin, to execute. He saw Evans, who promised to pay the money or go to Charleston, but did not, and escaped to North-Carolina. Goodwin went after him, but could not induce him to go to Charleston.

Attachment against Goodwin, was sent to M’Willie to manage, dated 18th May, 1830, who received $2718 65, in full thereon, by check of L. Boykin, on Branch Bank of Camden, in favor of John Goodwin, on the 13th September, 1830, and discharged the attachment by entering satisfaction thereon.

The evidence is, that the sureties of Goodwin, determined to purchase up the claim of the creditors of Bullard & Burr, and the amount paid to M’Willie was the consideration of the assignment of the decrees by the creditors of Bullard & Burr — the said amount of $2718 65, was raised and -paid by L. Boykin, H. T. Cantey and E. J. Brevard, in behalf of themselves and the other sureties of Goodwin, *except John Boykin, Jr.,*one of them, *who did not enter into the arrangement.*

*63In July, 1830, the official sureties of Evans, as commissioner, filed a bill in equity for Kershaw, calling on the official creditors of Evans, to present and establish their claims. E. J. Brevard, H. T. Cantey and L. Boykin, filed their claim under this bill, being the said assigned decrees, which was established before the commissioner, who, in July, 1832, reported in their favor $¡2693 90— which report was confirmed, and they received a dividend of about *one-third*of the same, from the sureties of commissioner Evans, and they now set up the balance thereof against the claim of Blair in this case.

The commissioner reports the amount of clerk’s costs collected by sheriff Goodwin, to be $373 22, with interest from.24th October, 1834.

John Goodwin, between December, 1830, and November, 1831, paid $731 98, on the note discounted at the Branch Bank, by Eugene J. Brevard, H. T. Cantey and L. Boykin, the proceeds of which had been paid to the creditors of Bullard & Burr, in consideration of the assignment of their decrees against the assets of Bullard & Burr.

After the hearing of this .case, at the same term, the sum of $279, then in the hands of the commissioner of this court, being part of the assets of Bullard & Burr, was ordered to be paid to L. Boykin, by virtue of said assigned decrees.

The case came to á hearing before his honor Chancellor Johnson, at June term, 1838, who delivered the following decree:

“No question has been raised as to the regularity or bona fides of the assignment by Evans, to Desaussure, of his fees of office, or as to the assignment of Desaussure to Blair; but in ascertaining the lights of these parties, it may become important to enquire, what are the rights which Blair acquired under these assignments.— The fees of office due to Evans, were a mere chose in action: which, according to common law, is not the subject of assignment. It cannot be transferred from one to another, for it is a mere abstraction, without substance, form, .or shape. Assignments of choses in action are, however, supported in equity, as between the parties, on a principle analogous to that on which the court proceeds, in decreeing the specific performance of agreements, with a due re*64gard, however, to the rights of others — they are held good, as between the parties to the assignment, but unlike notes, bills, and other choses, made assignable by statute, the assignor cannot confer any other rights than he himself possesses. In other words, *the assignee must take subject to all the equities which arise between the assignor and his debtor.*So that the rights of the assignee can only be resolved by ascertaining those of the assignor. The case will, therefore, be simplified by considering this as a demand on the part of Evans, against the sureties of Goodwin, the sheriff, to be paid the fees of office which the latter had collected for him, (Evans). Now, the case stated concedes that fees to a considerable amount were received by Goodwin as sheriff, and that complainants, his sureties, are responsible to Evans for them, but they insist, and I think with reason, that they ought not to be required to account with Evans for this amount, because Evans is their debt- or in a much greater amount, on the assignment, to them, by Tup-per & Kimball, and others, of their interest in the funds of Bullard & Burr, which were in the hands of Evans, and for which he is responsible. Certainly as between Evans and the complainants, the complainants would have the right to set off this demand. Is Blair in a better condition ? The only circumstance relied on to distinguish his rights from those of Evans, is that the assignment by Evans, to Desaussure, is prior in time to the assignment of Tupper & Kimball, and others, to the complainants : and I should incline to think that if the complainants had volunteered to obtain a demand against Evans, to set off against his claim for the costs, with a knowledge of the assignment to ' Desaussure, they ought not to be protected — but such is not the fact — they have been drawn into the controversy against their will, and so far from volunteering to obtain an interest in it, every step they have taken, has been with a view to extricate themselves from it. The case strikes me, then, as one in which the equities of the complainants, if not superior to those of Blair, are at least equal, and in which the court always leaves the parties as it found them.

The complainants had been sued at law as sureties for Goodwin on his official bond, and several of the claimants came in and filed suggestions, under the rule in Bates’ case, setting forth their de*65mands, and an order directing the commissioner to tax the costs on these suggestions, against the complainants, has been moved, but this court has no authority to enquire into the costs at law, the court of law alone has the power of taxing costs there, and its judgment is binding on this court — upon' the application to tax costs there, the defendant will have the full benefit of the grounds relied on here — all that this court can do, will be to direct the complainants to pay the costs at law, whatever they may be.

It is therefore ordered and decreed, that so much of the commissioner’s report as recommends the payment of $373 to Blair, on account of costs to Evans, be set aside and reversed, and that the complainants pay the costs of this bill and all proceedings at law.”

From this decree the claimant, J. J. Blair, appealed, and moved to reverse' or modify the same on the following grounds:

1. Because the equities of the claim of Blair, are superior to those of complainants.

2. Because it is illegal for a sheriff, or his sureties, to purchase up an execution in his office.

3. Because complainants purchased their equities after their legal debt to Evans and his privies, had accrued, to set it off against his demand.

4. Because the extent of complainant’s equity is only $117 77, and Blair’s claim being larger, he is entitled to a decree for the balance.-

5. Because one of the complainants, John Boykin, Jr., has no pretence to the equity set up by his co-sureties, and against him Blair is entitled to a decree.

6. Because the next of kin of E. J. Brevard, one of the sureties, (who are complainants,) cannot set up this equity, he having neither executor nor administrator.

7. Because one-half of the fees received by sheriff Goodwin, belonged to Blair, in his own right, under his contract as deputy for Evans.

The following *calculation*was submitted by the counsel of Blair, under the *4th ground of exception:*

Demand established by complainants against Evans’ sureties, - $2,693 90

*66Complainants received one-third from sureties of Evans, 897 96

Complainants received by order of the court, at June term, 1838, of Kershaw, as part of the assets of Bul-lard & Burr, ----- 279 00

Amount paid by Goodwin on the note in Bank, - 731 98

$1,908 94

Amount of assets of Bullard & Burr, in Evans’ hands, 2,026 71

Deduct the above amount, 1,908 94

$117 77

Curia, per Harper, Ch.

It was urged in argument, though it does not appear to have been made or considered on the circuit, that the assignment of Evans to J. M. Desaussure, was not the assignment of a chose in action, so far as related to the costs in question, but of a naked possibility, which is not regarded as assignable. The sheriff, Goodwin, it is said, had been but a short time in office, and it is not to be supposed that he had collected any considerable proportion of the costs now claimed, and only the costs which were in his hands at the time of the assignment to Desaus-sure, could pass under it. I suppose, however, that the *costs*had accrued and were due to Evans, from some one at the date of the assignment. It is hardly to be presumed that he continued to act as clerk of the court and earn costs, after he had failed and assigned all his property. If so, the assignee had a right to them in the hands of the parties liable to pay costs, and might follow them into the hands of Goodwin ; and having a special equity in behalf of the preferred creditors, would have a prior right to them, as against Goodwin, even supposing him to be a general creditor of Evans. Indeed, in the case supposed, this court would regard the sheriff only as the agent of the assignee, for the purpose of collecting the costs. But, independently of this, I suppose, the assignment attached upon the costs as they came into the hands of Goodwin. — • Evans was estopped by his assignment; the transaction was valid between the parties, and the assignee must take them, unless some one should show a better right to them. The argument is, that *67Goodwin was a creditor of Evans, in respect of the sura of f731 95, which he himself had paid to the creditors of Bullard & Burr, in exoneration of Evans’ liability; and upon the costs coming into his hands, had, as a creditor in possession, at least equal equity with the assignee, whose title to them accrued only at the same instant. But this payment was made a considerable time after the assignment, and he may have received a large portion of the costs before that time. In fact, as I have said, we have no evidence when the costs were received. The assignee has a clear right to them, unless a better right is shown, and I do not know that we ought to enter into the consideration of the question. But was Goodwin, in fact, a creditor of Evans’ ? He was in contempt of the court, by failing to obey its process. As a punishment for this, he, himself, was directed to be attached, and would have been imprisoned, unless he had been permitted to discharge himself by making satisfaction to the parties injured by his neglect. It may be, that if Evans had been afterwards found within the jurisdiction, the court would have punished him in the same way, and might have made it a condition of his discharge, that he should reimburse Goodwin. But could the latter have maintained any action against Evans, as for money paid, laid out and expended?

This misconduct of the sheriff, which subjected him to the penal censure of the court, would be a singular ground on which to build a prior equity.

Then as to the case of the complainants, the sureties of Goodwin. — Goodwin was officially liable to the creditors of Bullard & Burr, for his neglect in failing to arrest Evans, and no doubt they might have maintained an action on the case against him for that neglect. Complainants, along with Goodwin, in discharge of his liability and their own, paid off those creditors and took an assignment of their decrees. Supposing this to have made them creditors of Evans, I do not see how they could be regarded as any thing more than general creditors, who must be postponed to a special assignee. But in truth, their whole position, with respect to the payments made by them, amounts to this — that having paid part of their liabilities, as the official sureties of Goodwin, they claim to *68set ofí this payment against the residue of their liabilities. This, of course, is out of the question.

*J. M. Desaussure,*for appellant Blair.

*Withers,*contra.

The decree is therefore reversed, and it is ordered and decreed, that the amount reported in favor of the defendant, John J. Blair, be paid to him.

Johnson, Dunion and Johnston, Chancellors, concurred.