HARSISON vs MARSHALL, for use, &c., 6 Port. 65

ORMOND, J. This was an action of trespass on the case, brought by the plaintiff in error against the defendant in error, for negligence in failing, as sheriff, to make money on executions of the plaintiff. At the term of the court previous to the trial of the first cause, a verdict was had for the plaintiff. The court granted a new trial, on the payment of all costs, as a condition precedent. At the succeeding term of the court, affidavits were filed by both parties; and on motion of the defendant, the court reinstated the cause on the docket.

At a trial of the cause, a bill of exceptions was taken by the jffaintiff, from which it appears — That the executions described in the declaration, came to the hands of the defendant, as sheriff, on the first of May, eighteen hundred and twenty-eight: That on the eleventh of June, thereafter, the plaintiff’, assigned all his interest in thé executions, to the defendant, who was the mere agent of Wyckoff, Pickens &-Co. in obtaining the assignment, and immediately handed it over to them, it being -on a separate piece of pa,per: That the transaction was the purchase of the interest of the plaintiff.

The plaintiff then offered evidence to prove, that the defendant could have made the money on the executions, previous to the eleventh of June, eighteen hundred and twentv-eight; but that, by his negligence, a constable had levied executions on all the property of the defendant in the executions, and had sold the same. Blit, the court was of opinion, that no evidence could be introduced, shewing negligence previous to the eleventh of June, eighteen hundred and twenty eight, and excluded the evidénce. The plaintiff excepted.

It was also proved, that the executions above mentioned, came first to the hands of the defendant, as sheriff, on the fifteenth of November, eighteen hundred and ■ twenty-seven, and were returned by him, “not levied.” It was further proved, that Wyckoff, Pickens & Co. indemnified the constable, if he would pay the money made by him over to the defendant; but that afterwards, under advice, that the executions in the hands of the defendant, had lost their lien by the levy of the constable, they withdrew the indemnity and paid him back the money. It was proved that E.

Pickens, an attorney who appeared to act for Wyckoff, Pickens & Co. gave it as his opinion, that the executions he held, had lost their lien, in consequence of the levy by the constable. The judge charged the jury, that the executions in the hands of the defendant had obtained a lien that could not be divested'-by the levy of the constable, notwithstanding the act of eighteen hundred and twenty-eight, in relation to liens on executions, in the hands of constables; and that if such were the case, under the facts, they should find for the defendant.— To this the plaintiff excepted.

There was a judgment for defendant, from which the plaintiff prosecutes a writ of error to this court, and assigns these matters as error. This court can not notice the facts stated in the record, relative to the reinstatement of this cause on the docket, in the court below. The court certainly had power to ascertain whether the condition on which the new trial had been granted, had been performed —and if not performed, whether the performance was not waived by the opposite party ; or whether he had not done all in his power-to perform it.

These were all questions which the court had power to settle, which addressed themselves to the sound discretion of the court, and which being deductions from facts, and not matters of law, can not be reviewed in this court. The questions raised on the bill of exceptions, are of a graver character. In the first charge of the jury, the court below seems to have considered, that the transfer by the plaintiff, to WyckofF & Co. of his interest in the executions, extinguished the liability of the defendant, which might have accrued from his neglect, previous to that time.

But on what principle this decision can rest for support, this court can not perceive. The right of action can not be transferred; but certainly a transfer of the judgment, (which is the substance of this transaction,) would carry with it a right to sue out execution, or to bring suit in the name of the original plaintiff; and as any defence, which existed against him, would be available to the defendant— so, any right the plaintiff was entitled to, would be available to the assignee.

It is probable that the opinion of the court was influenced by the fact that the assignment was made to the defendant himself But the record shews that he was the mere agent of WyckofF & Co., and if so, he can derive no benefit from that fact. Being the mere agent or attorney, in fact, of WyckofF, the law of the case is the same, that it would be, if the transaction had taken place between the plaintiff and WyckofF & Co., without the intervention of the defendant.— This charge of the court was therefore erroneous.

The remaining charge of the court, affirms the proposition, that according to the facts then stated, the lien of the executions in the. hands of the defendant, was not divested by the subsequent levy and sale by the constable, and that, therefore, they must find for the defendant. The opinion stated by the court, as to the lien of the executions in the hands of the defendant, is undoubtedly correct; but the conclusion which he draws from it, is as clearly incorrect.

What is the gravamen of the charge in the declaration ; it is, that bj the neglect of the sheriff to levy and make the money on the executions, the plaintiff has been injured. How is this answered, by shewing that the plaintiff has a lien on any property which the defendant in execution may possess ? This charge is liable to the farther objection, that it is not a charge on the evidence.

The evidence, set out in the bill of exceptions, shews, that Wyckoff & Co., at one time, indemnified the constable, and that therefore, he paid over the money which he had collected, to the discharge of the plaintiff’s executions; but that, believing the executions had lost their lien, the indemnity was withdrawn, and the money paid back. ' All persons are charged with knowledge of the law, and it could not be tolerated, that the person beneficially interested in a cause, should, from ignorance of the law, surrender his rights, and hold the opposite party to a knowledge of the law, and seek to charge him for a loss, caused by his own indiscretion.

Again: it appears that E. Pickens, who was acting as the attorney of Wyckoff & Co., advised the defendant that the executions had lost their lien. If Pickens were, in fact, the attorney of Wyckoff & Co., the advice thus given, is, in effect, advice given by Wyckoff & Co., and if calculated to prejudice the defendant, he is entitled to defend himself, by shewing it. The judgment must be reversed, and the cause remanded, to be tried upon the principles set forth in ihis opinion.