Robinson v. Towns

By the Court. Stephens, J., delivering the opinion. 1. We think that the Court properly excluded the entries which the defendants desired to have read in evidence. None of them tended to show a discharge of the sheriff from his liability to pay over to the plaintiffs in execution the money which he had collected for them before their assignment of the judgment. The entry which was chiefly urged as a proper one to have gone in evidence, was the assign [822] ment itself. It was said that the plaintiffs could not maintain the suit, because they had parted with their interest by the assignment. They did part with their interest in the further enforcement of the judgment, but not with their interest in their money which the sheriff had previously collected on it. The assignee acquired, and they lost the right to enforce the judgment as it stood at the time of the assignment, that is to say, the right to collect what was still due on the judgment, out of the defendant in it. Money previously collected and held by the sheriff would not be reached by an exercise of the assignee’s right of enforcing the judgment, for such money was the fruit of the previous enforcement of the judgment to that extent. Such money constituted a debt from the sheriff to the plaintiffs, to be enforced by a rule or suit against him. 2. We see no error in the admission in evidence of the former judgments against the sheriff. 3. We think Mr. Downing was an incompetent witness, on account of his interest in the costs. The Act of 1812, in relation to the liability for costs on the part of counsel for non-resident plaintiffs, Cobb's Dig., p. 505, consists of two sections creating different liabilities. The first section makes the attorney liable for costs whenever his client, being a non-resident .plaintiff, is cast in his suit; and this section is left unaffected by subsequent legislation. The second section makes both the attorney and client, that client being a non-resident plaintiff, liable for costs, whenever the plaintiff gains the case, but the defendant proves to be unable to pay the costs. This section is modified by the subsequent Acts of 1834 and 1842, (on the next two pages,) so as to leave out the liability of the attorney in that class of cases. The result of all the Acts is, that the attorney of a non-resident plaintiff, as Mr. Downing was, is liable for costs if he fails to get judgment against the defendant, and not liable if he succeeds. But it was argued that the plaintiffs must have had a verdict, without Mr. Downing’s testimony, for an amount which, though far below their claim, would have carried the costs; and that Mr. Downing was therefore secure from costs, either with or without his own testimony. We do not think so. On the testimony of Mr. Blackman, without the explanatory and contradictory statement of Mr. Downing, there might have been a clear verdict [823] for the defendant. We do not intend to be understood as intimating that such a verdict either ought, or ought not, to have been rendered, if Downing’s testimony had been out of the way, but only that we should not feel authorized to set such a verdict aside. Judgment reversed.