Forrest v. O'Donnell
| Decision Date | 23 January 1880 |
| Citation | 4 N.W. 259,42 Mich. 556 |
| Parties | DANIEL FORREST v. JOHN O'DONNELL. |
| Court | Michigan Supreme Court |
An attachment was issued and levied on certain property, and a statutory bond given the sheriff by defendant to retain possession. Judgment was subsequently entered, and afterwards assigned by an instrument that did not mention the bond. Held, that the mere assignment of the judgment did not authorize the assignee thereof to maintain an action upon the bond in his own name.
Error to Saginaw.
Michael Brennan, for plaintiff in error.
J.H McDonald, for defendant in error.
February 6, 1871, Hector A. Beaton sued out an attachment from the circuit court against McMullen and Porterfield, and delivered it to the sheriff, Alfred Avery, for service, and on the next day the officer seized a quantity of personal property found in the possession of the firm of Stephen Cromwell & Sons, and on the tenth of the same month they delivered to him a bond under Comp.Laws, � 6409, to prevent dispossession.
The bond purported to be executed to him by the firm as principals and O'Donnell as surety, and was conditioned for the production of the property attached to satisfy any execution that might be issued on any judgment that should be recovered by Beaton in the attachment suit.
April 24, 1872, Beaton, the attachment plaintiff, recovered judgment for $189.82, besides costs, and on the first of May thereafter sued out out execution returnable on the 2d day of July, and the sheriff, Avery, returned it nulla bona on the 12th of that month.
While the execution was out, and on the 9th of May, 1872, the plaintiff Beaton assigned the judgment to the plaintiff in this suit.
The assignment was drawn with great particularity, but it did not refer at all to the bond. I pass by the error about the date of the judgment and the slight inaccuracy in the amount.
July 8 1872, being two months later, the sheriff assigned the bond to Beaton. Subsequently Forrest, the assignee of the judgment, brought this suit upon the bond against O'Donnell, the surety, and the circuit judge, on motion at the trial, excluded the bond, and the plaintiff was thereby defeated. He now askes a revision of the ruling.
The declaration averred an assignment of the bond by the sheriff Avery to Beaton on the eighth of July, 1872, and an assignment of the judgment and bond also from Beaton to the plaintiff on the ninth of May preceding.
Now as no other assignment was made to Forrest except that of the ninth of May, which did not allude to the bond, it is first of all material to ascertain whether the instrument passed by that assignment; because, if it did not the ruling objected to cannot be disturbed, and all the points agitated relative to the execution of the obligation become unimportant.
It is a general rule of the common law that the action must be brought in the name of the party in whom the legal interest is vested, and that the courts will not in general take notice of mere equitable titles and rights of action, as contradistinguished from the strict legal title and interest so as to invest the equitable or merely beneficial claimant with the ability to adopt legal proceedings in his own name, although the equitable right embraces the most extensive or even the exclusive interest in or benefit to be derived from the contract. The ground of distinction between legal and equitable remedies requires this principle to be observed. If the beneficiary were permitted to sue at law in his own name, the protection and advantage intended to be secured by the intervention of a trustee, clothed with the legal title, might be lost, and the salutary benefits arising from giving courts of equity control over matters of trust would be defeated. Besides, it would be impracticable...
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