Willam McGregor v. The Town of Walden, 14 Vt. 450

The opinion of the court was delivered by Bennett, J. In actions for torts the general rule is that such actions must be brought in the names of the persons whose legal rights have been affected, and who were legally interested in the property when the injury to it was committed. This rule is founded in good sense, and it might well be inquired, why should the suit be brought in the name of a person who is not to enjoy the benefit of it, and who has sustained no damage for which a reparation is demanded ?

The declaration shows that the plaintiff was the assignee of the judgment against Bell; that he, as such assignee, took the execution and put it into the hands of the constable for collection, and that the default of the officer accrued while he was the owner of the judgment. It is true that it is an ancient rule of the common law that a chose in action cannot be assigned or granted over to another. The wisdom of this rule has been frequently questioned, and it has been so explained and modified that it remains, at the present day, at most only an objection, in any case, to the form of action.

Courts of equity, who have always been disposed to look at the substance, rather than the shadoio, never adopted it, but always acted in direct contradiction to it. In process of time, courts of law began to look with more complacency upon assignments of choses in action, and to speak of them as being good between the parties, and give them effect, and held the assignment a sufficient consideration for an express promise.

It may now be regarded as settled law that courts of Jaw will protect the rights of an assignee to a chose in action, after notice, equally with courts of equity; yet, as a "general rule, it must be admitted that they have adhered to the formal objection that the action must be brought in the name of the assignor. If this had been an action of debt upon the judgment against the judgment debtor, it must have been in the name of the judgment creditor. So if the action had been for a default of the officer before the assignment, it must have been brought in the name of the assignor.

But, in this case, the plaintiff is the only person injured. His right alone is affected by the default of the officer. No chose in action had ever accrued to his immediate assignor, nor to the judgment creditor. It would, as it seems to me, be exceedingly fine spun to hold that the right of action for the default of the officer, after the assignment, accrues to the judgment creditor, simply upon the ground that the judgment could not be assigned, at law, so as to give the action inform in the name of the assignee, though, as to all valuable purposes, it would be operative.

I know of no rule of the common law which, in a case like the present, requires the action to be brought in the name of the judgment creditor, and I can see no use or convenience in it. In Clowes v. Hawley, 12 Johns.

R. 484, the assignee of a bond was permitted to maintain trover in his own name against the obligor, who had got it into his possession and converted it, and the court say, ‘ it is no objec- £ tion to the action that the assignee might, in the name of £ the obligee, have sued the bond.’ The case proceeds upon the ground that, by the assignment, the plaintiff had acquired an interest, which courts of law will protect. In the case of Harrington v. Ward, 9 Mass. R. 251, which has been much relied upon by the defendant’s counsel, the plaintiff and two others had signed a note as surety with J.

N. to W., who sued all the signers, and the defendant’s deputy attached the property of J. N. the principal. When judgment had been obtained, the execution was put into the hands of another deputy of the defendant, who demanded the property of the first deputy, who refused to deliver it, and the collection of a moiety of the execution was enforced against the plaintiff, and it was for the neglect of the officer, in not turning out the property attached, that the action was brought. Upon such a state of facts the court might well say the action would not lie.

The judgment creditor made no complaint, nor the judgment debtor, whose goods had been attached, and there had been no assignment of the judgment to the plaintiff so as to create any privity. When the court say ‘ that the officer is answerable for his neglects to none ‘ but the plaintiff or the defendant in the suit,’ it must be taken as applicable to such a state of facts as were then before them. It has been settled in this state that towns, under the statute, are liable for the neglect of their constables in the first instance, and that .a suit against the constable is not necessary.

The judgment of the county court is reversed, and judgment that the plaintiff’s declaration is sufficient.