Sanford v. Nichols

Church, J. 1. An action at law can be sustained by him only, in whom the legal interest in the subject ^natter of the suit is vested. The subject matter of this suit, is the negligence of the defendant. If the action was upon the note itself, against the promiser, the action could only be sustained by the promisee, notwithstanding the assignment; because a chose in action cannot be so assigned, as to give the assignee a legal right to sue upon it, in his own name. This is an established principle, and we have no disposition to evade it. In such case, the subject matter of the suit would be, the promise to pay, in which the promisee alone has the legal interest. The right of action prosecuted in this suit, never existed in this plaintiff, the promisee: it is a new right, originated since his time, and against a person with whom he never had any privity. The promise was the chose in action, in which this plaintiff had a legal interest, and which he assigned to Gor-ham. The present right of action, growing out of the undertaking of this defendant with Gorham, and his neglect of duty, was original in Gorham alone. It has been said, that if an action of debt had been brought upon the judgment recovered by Gorham, the assignee, against the original promiser; or if an action of ejectment had been prosecuted for the land set off in satisfaction of such judgment ; such actions must still have been in the name of the promisee of the note. This is true ; but it is because, in the first case, the judgment being in the name of the promisee against the promiser, the legal interest has not been changed; and in the second, the levy being in his name, conveyed to him the legal title to the land. And in both cases, the prj ceedings are only following out the original remedy, and, forcing the original legal right against the original debtor,1 collecting the debt. But here, we have a case essentially different. This ri| of action is not against the original debtor, but a third persol the officer; it is for a cause of action which does not affect' the interest of the promisee; nor will a judgment upon it, in any way discharge the obligation, or pay the debt due from [328] the promiser of the note. It is 'difficult, therefore, for us to discover the principle, which will authorize an action in fa-vour of this plaintiff, against this defendant, for this cause of action. And yet, we agree, that “ every proceeding at law, directly to enforce the contract,” made with the assignor, by the promiser, must be in the name of the assignor. 2 Conn. Rep. 506. The decision of the case of Colburn v. Rossiter, 2 Conn. Rep. 503. as we believe, proceeded upon the principles we here recognize, and connot be justified upon any other. And a majority of the judges who sat in that case, expressly recognize them. 2 Rolle’s Abr. 45. Masters v. Miller, 4 Term Rep. 339. Magill v. Lyman, 6 Conn. Rep. 59. Lyon v. Summers, 7 Conn. Rep. 399. We have assumed it, in this pase, that the note was legally assigned to Gorham, although it does not appear upon the motion, that any notice of assignment was given to the debt- or. There could have been no proof of such notice ; because the preliminary evidence of the assignment was excluded; the defendant was arrested at the threshhold of his defence; and this is the ground of complaint. But more than this ; the assignment, as between these parties, was valid, without any notice to the debtor. Bishop v. Holcomb, 10 Conn. Rep. 444. A majority of the court, for the reasons given, are of opinion, that for the cause of action set up in this motion, Gorham, the assignee of the note, and in whom was the entire beneficial interest, can alone sustain an action. There was no concurrent right or remedy for this plaintiff. It is unlike the case of an injury to personal property in the hands of a bailee, or the peculiar rights of a tenant in possession, and a rever-sioner &c., where there may be concurrent remedies for the same act, affecting the distinct rights of each. Here, if the legal interest is in Gorham, the assignee, there can be no right at all in this plaintiff. 2. It was also claimed, in this case, that the court below erred, because it admitted in evidence the return of the officer, showing a demand by him with the execution, for the property attached upon the original writ, of the officer attaching it. This evidence was very properly admitted. It was the legal duty of the officer serving the execution, to make [329] that demand ; and if so, his return shewing the fact was pri-ma facie evidence of its truth. Scott v. Crane, 1 Conn. Rep. 255. Gates v. Rushnell, 9 Conn. Rep. 530. Howard v. Smith, 12 Pick. 202. But for the first cause or ground of the motion for a new trial above considered, a majority of the court advise a new trial. In this opinion the other Judges concurred or acquiesced, except Sherman J., who dissented on the first point. New trial to be granted.