Commonwealth Ex Rel. Vicars v. Wampler
| Decision Date | 14 September 1905 |
| Citation | 104 Va. 337,51 S.E. 737 |
| Court | Virginia Supreme Court |
| Parties | COMMONWEALTH ex rel. VICARS. v. WAMPLER et al. |
Judgment — Assignment — Breach of Officer's Duty—Right of Assignee to Sue Therefor.
The statute making choses in action assignable, and authorizing an assignee to maintain in his own name any action which the original obligee might have brought, does not authorize an assignee of a judgment to maintain an action against an officer and the sureties on his official bond for a breach occurring prior to the assignment, by reason of the officer's failure to return a forthcoming bond taken on the judgment as prescribed by statute to give the bond the force of a judgment against the obligors; the statute not investing in assignees as an incident to assignments a litigious right against a third person for an injury which accrued prior to the assignment.
Error to Circuit Court, Wise County.
Action by the commonwealth, on the relation and for the use of A. M. Vicars, against W. G. Wampler and others. Judgment for defendants, and plaintiff brings error. Affirmed.
Vicars & Perry, for plaintiff in error.
Ayers & Fulton, for defendants in error.
The single question presented by this record is whether the assignee of a judgment is entitled to maintain an action for damages against an officer and the sureties on his official bond for a breach of the condition thereof which occurred prior to the assignment, by reason of his failure to return a forthcoming bond taken upon the judgment within the time and in the manner prescribed by statute to give such bond the force of a judgment against the obligors therein.
Upon demurrer to the declaration the trial court resolved that question in the negative, and rendered judgment for the defendants. Whereupon the plaintiff brings error.
The authorities are generally agreed that the assignment of a judgment carries with it "the cause of action on which it was based, together with all the beneficial interest of the assignor in the judgment and all its incidents." Freeman on Judgments, § 431.
Upon the same principle the assignment of a note carries with it all securities provided for its payment.
The doctrine is founded upon the theory that the debt is the principal thing and the security an accessory. They are not severable, and the security passes by virtue of the assignment as an inseparable dependent incident. Carpenter v. Longan, 16 Wall. 271, 21 L. Ed. 313.
It will be observed that the present inquiry does not involve the power of the judgment creditor to assign the right of action in question, but whether that right passed to the assignee as an incident to the assignment of the judgment.
Citizens' National Bank v. Loomis, 100 Iowa, 266, 69 N. W. 443, 62 Am. St. Rep. 571, is the only case to which our attention has been called which directly sustains the pretension of the plaintiff in error. In that case it was held that "the assignment of a judgment in an action in which an attachment has been allowed and property seized thereunder passes to the assignee the judgment creditor's right to recover damages of the sheriff for negligence in the care of property seized by allowing a disposition to be made of it."
The reasoning upon which that decision is based is not satisfactory. It proceeds upon the false premise that the right to sue for the breach of official duty must exist somewhere, and as the assignor cannot sue, having parted with the judgment, the right of action must rest in the assignee, whereas, we apprehend, it appears by the weight of authority, that the right of action for the previous breach of duty by the officer is a mere personal right, which appertains to the judgment creditor.
The right to recover damages for the tort, it is true, is an incident to the judgment in the qualified sense that it belongs to the owner of the judgment at the time the injury is committed; but it is separate and distinct from the right to the judgment, both in its character and in respect to the persons liable to respond in damages for the wrong. It is a collateral right, over which the judg-ment creditor possesses exclusive dominion, which he may enforce or forbear to enforce, and may assign or withhold, at pleasure.
The assumption, therefore, that the right to sue the officer exists in the assignee of the judgment, proceeds upon the hypothesis that it is such an incident as must necessarily pass by the assignment of the judgment, a conclusion which the authorities do not sustain.
Bouvier, in defining the word "incident, " observes:
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...enforcement of judgment, but not interest in money that sheriff had collected on judgment prior to assignment); Commonwealth v. Wampler, 104 Va. 337, 51 S.E. 737, 738 (1905) (“assignment of a chose in action [generally does not] invest in the assignee, as an incident, a litigious right agai......
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