Chase v. Town of Plymouth

The opinion of the court was delivered by Davis, J. Two questions, affecting- alike the right of the plaintiff Chase, and that of Hosley, the real owner of the judgment and [472] execution against Headle, to recover against the defendants, have been adverted to, but not much insisted upon ; one, that the execution was informal, in omitting the command to the officer to dispose of the goods of the debtor, — the other, that Hosley had controlled the execution, while in the hands of Josselyn, the constable, so that neither he, nor the town, was responsible for the omission charged in the declaration. The ruling of the county court was correct on both of these points. Mere formal defects in the process, not rendering it void, even if considerable enough to cause it to be abated, quashed, or set aside as irregular, on proper motion, or plea, by the party directly affected by it, but which, if not so moved, do not affect the legal validity of the process, can never be interposed by the officer, in whose hands it is placed for service, as a shield to protect him from the consequences of plain derelictions of duty in respect to it. Fletcher v. Motte et al. 1 Aik. 339. The directions to the officer, upon the suggestion of a doubt by him, whether the hay and grain attached on the writ could be legally holden as the property of the debtor, to make inquiries into the matter before levying upon it, followed, as they were, by giving to him such indemnity as he required, and by explicit orders to proceed and sell the same, and also to take and dispose of another article, which had not been attached on the writ, certainly present a case as far as possible removed from such a control, as would exempt the officer from responsibility. It was rather superadding to the ordinary requirements of the law explicit directions in respect to the collection of the execution, which, under the circumstances, he was not at liberty to disregard. But the main question raised is, whether Chase, who had assigned the note, on which the judgment is founded, to Hosley, before suit brought, can sustain this action ,• or rather, whether the latter can do so in the name of the former, or only in his own name; — for it is apparent enough, that the latter, for his own benefit, commenced and prosecutes this suit, as he did that against the original debtor, in the name of Chase. It is doubtless true, upon the authority of the case of McGregor v. Walden, 14 Vt. 450, that Hosley could have maintained the action in his own name. The cases are in every essential particular [473] identical. In both, the party beneficially interested took the sole control and management of the matter, with the full knowledge of the officer. In both a privity was thus established, which would enable the assignee to call upon the officer, and consequently the town, directly in his own name, for any default, or omission of duty, in not collecting the execution. But we think he could equally enforce his just claims in the name of the nominal creditor, in whose name alone he could bring the original action, and in whose name only he could enforce any direct or collateral remedies, as against the judgment debtor, his bail and recognizors. The course adopted here is the natural and usual one; and although circumstances may exist, which would justify a resort to an action in the name of the equitable assignee, still those circumstances can never preclude the right to sue in the name of the record party. The judgment of the county court is therefore affirmed.