
    Menard v. Shaw, Comptroller.
    Where certain certificates of the funded debt of the Republic, concerning which the law provided that “they shall be transferable only on the books of the stock commissioner by the holder himself, his attorney or legal representative,” were sold by virtue of an execution, and the stock commissioner refused to allow the sheriff to make the transfer on his books: Held, That the court would not compel him to do so.
    
      Qutre whether, as a general rule, choses in action can be levied upon and sold.
    Error from Travis. Certain certificates of stock of the funded debt of the 'State held by Frederick Dawson had been levied on by an execution that liad ■issued on a judgment and decree of the court against him at the suit of McKinney & Williams, and had been sold by the sheriff of Galveston county; at which sale Menard, the plaintiff in error, had become the purchaser, and the sheriff had transferred the certificates to him. Menard and the sheriff both applied to the comptroller to have these certificates transferred to Menard on the stock book in his office. The comptroller refused, and Jlenanl applied for a mandamus. The comptroller answered that the law had provided the -only mode in which transfers could be made of such certificates of stock on the ¡books; that it provides “that they shall be transferable only on the books of ■the stock commissioner by the holder himself, his attorney or his legal representative.” The mandamus was refused and the suit dismissed.
    
      
      Webb and Duval, for plaintiff in error.
    The only question, we apprehend, to be determined in this case is whether the certificates could be reached by a decree of Che court and be sold under execution. (Acts of 1840, p. 95, sec. 12; Acts of 1842, p. 08, sec. 12; Thomas v. Callahan’s Heirs, 5 Mart. It., N. S., ISO ; Wilson v. Mundy, 5 La. R., 486; Bayard v. Hoffman,'4 Johns. Ch. R., 450; Spader v. Davis, 29 Johns. R., 554.)
    If then, as we contend, these certificates were properly reached and sold' under the decree of tiie District Court, the assignment of the sheriff to Menard, the purchaser, conveyed to the latter every interest and right which Dawson had therein. It is true that the law under which these certificates were issued provides that “they shall be transferable only on the books of the .stock commissioner by tiie holder himself, his attorney or legal representative.” If Menard himself, as tiie holder of these certificates, had not the right to have the same transferred to him on the books of the stock commissioner, then we say that tiie said commissioner was bound to make such transfer on tiie application of the sheriff of Galveston county. The sheriff was, by act and operation of' law, made the agent of Dawson. If Dawson himself could transfer the certificates to Menard on the books of the stock commissioner, so could tiie sheriff. In equity choses in action are assignable. (4 T. R., 690.) And in Sewell’s Law of Sheriff (p. 199) it is declared that “the sale or assignment by the sheriff of tiie goods or chattels of tiie defendant taken on a fi. fa. conveys an indefeasible title to tiie possession of the specific articles sold or assigned, unless the writ be void or tiie goods taken were the goods of a stranger.” The assignment then of these certificates to Menard by the sheriff conveyed every right which Dawson had under the same. But if any further act was required to make these rights effective or render the certificates available to tiie purchaser, it was competent for the sheriff to do it. It is the duty of every court to see that vitality is given to its judgment or decrees through its ministerial officers. In the present case it was the object of the court in decreeing a sale of these certificates that the benefit of all the rights of Dawson therein should be vested in the purchaser; and the sheriff had tiie power, and it was his duty, not only to levy upon, sell, and assign the said certificates, but do-every other act necessary to make such sale and assignment available to the purchaser. He could, therefore, as the agent of said Dawson, have made a transfer of the certificates to Menard upon the books of the stock commissioner; and the comptroller of public accounts, in whose charge those books now are, was bound under the law to have allowed such transfer to be made. But this lie-refused to do, both upon the application of the sheriff and of Menard himself. (Acts of 1840, p. 279; Acts of 1846, p. 220.)
    
      Harris, for defendant in error.
    I. Tiie stock certificates were not liable to execution, and therefore tiie interest of tiie grantee was not divested bjr the sheriff’s sale. For it has beeu. decided that “a promissory note or other chose in action cannot be taken in. execution.” (1 Cow. R., 240.) Nor can bank shares in Hew York. (Denton v. Livingston, 9 Johns., 96.) Nor an inchoate right of dower. (14 Mass. R., 378.) Nor money received by tiie sheriff on execution. (Dawson v. Holcomb, 1 Ham. R., 275.) Nor money in tiie hands of an officer received and indorsed by him on execution. (Willeso. Pitkin, 2 Bail. R., 617.) These cases are cited to show that nothing but property can be sold under execution, and that notes, nor inchoate rights, nor money, nor bank shares, (certainly very similar to-stock certificates,) nor a chose in action (which they certaiqly are) are liable to» execution. Our statute “concerning executions” (Acts of 1842, p. 66, sec. 4)--subjects property alone to execution. It enumerates the property subjected thus: 1st, personal or movable property; 2d, uncultivated lands; 3d, slaves;, and 4th, improved lands or the homestead of the defendant. This shows that there was no intention .to subject choses in action, &c., to execution.
    
      II. The statute for funding the public debt provides “that the holders of those certificates shall not be permitted to transfer them in any other mode-than on the books of the stock commissioner by the holder in person, his lawful attorney or legal representative,” &e. (Acts of 1836, p. 241, sec. 4.) The act of 1846 (p. 220) provides “that they may be transferred by the owner or assignee, or their agent or attorney, upon the books of the comptroller of public accounts, and not otherwise.”
   Lipscomb, J.

It seems to me very clear that such certificates were not subject to be levied on and sold at common law; that, like any other evidence of debt or an interest secured, they were not supposed to possess any intrinsic value, and could not have been the subject of larceny. It has been so considered'in most of the States where the common law forms the basis of their jurisprudence, and hence statutes have been enacted in most of them making it larceny to steal notes and such like evidence of debt or valuable interest. It is true that a court of chancery can reach a fund secured in the stocks of a corporation, but it is not by acting on the paper evidence of the person entitled to it, but by a decree acting at once directly upon the trust fund in the hands of the-trustee, the corporation. Had Dawson been owner of shares of value in a. stock company or private corporation, and had judgment at law been obtained' against him and no property liable to be levied on for the satisfaction of the-judgment been found, this fund so owned by him could have been subjected-by a decree of a court of equity to the satisfaction of the judgment, but not. by ordering the sheriff to levy on and sell the paper evidence of his interest. Such a decree was never heard of or thought of by any one at all conversant with equity jurisprudence. In like manner the rights and credits of a debtor-are often subjected to the satisfaction of a judgment against him, under the provisions of a statute, by way of garnishment of his debtor, without having any regard to the evidence of such debt.

But if these considerations were wrong-, and such certificates, in the absence of any express law in relation to the manner in which they should be transferrd, were liable to be levied on by execution and sold, the law referred to by the respondent is a sufficient answer why the mandamus should not issue. Hone can-deny but that it was competent for the Government to prescribe in what way such evidence of its indebtedness that it had directed to be issued to the creditor should be transferred; and it was a wise policy to provide against being brought into controversies as to the ownership of such evidences so issued of its indebtedness. But suppose the Legislature in passing- this law really intended to-protect the creditor of the Government from what has been attempted in this case from a forced sale of his claim: such motive, so far as being censurable, would be worthy of the highest commendation. The creditor had perhaps already suffered from the inability of the State to pay what was justly due to-him. The State cannot pay now, but is willing to acknowledge the debt and to protect him as much as possible from further sacrifice; and it therefore provides that the creditor shall never be divested against his will of this demand so acknowledged; and. to provide against a forced sale, it will not prevent a transfer of the indebtedness in any other way than upon the stock books by the creditor himself, or his agent whilst he is living, and when he is dead, by his legal representative, and by this means enable him to wait until the State is able to pay the debt. Whatever may have been the motive that governed the Legislature in making the law. it is sufficiently clear that no transfer can be made but in the mode prescribed by law. The judgment must therefore be affirmed.

Hemphill, Ch. J., and Wheeler, J.

We rest our judgment in this case-solely on the ground that the statute prohibited the transfer of the certificates in question in any other manner than that designated and prescribed-in the act referred to. Upon the other questions discussed we express n© opinion.

Judgment affirmed.  