
    Richmond.
    Wallop’s adm’r v. Scarburgh & als.
    
    1. Upon a motion to quash a writ and inquisition founded on a judgment at law, which motion is sustained, the writ and inquisition are a part of the record, though no bill of exceptions is taken; and they will be so treated by an Appellate Court.
    2. A motion to quash a writ and inquisition founded on a judgment, must be in the name of the party on the record, and must be against such a party.
    3. A stranger having acquired an equitable right to the benefit of an execution, or to the property upon which it is levied, will generally have authority to sue out and conduct the process, or to object to its regularity or validity; but he must do it in the name of a legal party to the process, or one who can be made so. And his authority to use the name of the party to the process of a Court of Law, will be so far recognized by such Court as to preclude the intervention of such party for the purpose of defeating it.
    In May 1830, a judgment was rendered in the Circuit Court of Accomack, in favour of Henry F. Finney, as assignee of Skinner Wallop, against John W. Dow
      
      ning, George D. Downing and Samuel Bloxom and Elizabeth his wife, as devisees of William Downing, for the sum of 700 dollars, with interest and costs, to be levied on certain assets confessed by them to have been derived from William Downing by devise; and ® J 7 an extent was awarded to have the said assets delivered to the plaintiff at their appraised annual value. At the same time the following entry was made upon the record : “ The plaintiff releases from the operation of this judgment the land aforesaid devised to John W. Downing; the said plaintiff admitting that as to the land devised to said John W. Downing, the verdict aforesaid was found erroneously; the said John W. having aliened the land devised to him as aforesaid, before the institution of this suit.”
    In June 1830, an extent issued on the judgment, with the memorandum endorsed thereon, and was levied ; and the lands in the possession of George D. Downing and Bloxom and wife, were delivered to the plaintiff at the appraised annual value of 67 dollars 10 cents.
    In May 1840, George P. Scarburgh, and Eliza R. and William G. Riley, infants, by their next friend William Riley, gave notice to William A. II. Wallop, adm'r of Skinner Wallop, that they would, at the next term of the Circuit Court of Accomack, move the Court to quash the extendi facias issued on the judgment aforesaid: and in pursuance of that notice, the Court upon the motion of these parties, quashed the execution and the inquisition taken thereon. No exception was taken by the defendant to the opinion of the Court quashing the execution and inquisition, so as in that way to make the original judgment and the proceedings thereon a part of the record; but they were put into the record by the clerk as a part thereof.
    It does not appear from the record that either the plaintiffs or the defendant in the motion had been made parties to the original suit. Nor does it appear what interest the plaintiffs had in it, except that the judgment of the Court quashing the execution and inquisition, recites that they claimed under George D. Downing and Bloxom and wife. On the application of William A. H. Wallop, this Court awarded a supersedeas to the judgment.
    
      C. & G. N. Johnson, for the appellant,
    insisted, that neither the plaintiffs or defendant were parties to the original suit; and that, therefore, the motion to quash the execution and inquisition could not be properly made by the one or against the other. They further insisted, that although no bill of exceptions was taken to the judgment of the Court below, the execution was necessarily a part of the record, because it is described and referred to in the judgment; and if it was not, the judgment was void for uncertainty. They cited Beale v. Wilson, 4 Munf. 380; Lewis v. Thompson & als., 2 Hen. & Munf. 100.
    
      Joynes, for the appellees,
    insisted, that the original judgment and the execution and inquisition thereon were not parts of the record, nor was the notice; and that the fact that they had been copied into it by the clerk, did not make them a part of it. It was, therefore, impossible for this Court to say that there was error in the judgment of the Court below; and the Court would presume it was correct until it was shewn to be erroneous on the record. He cited Ayres v. Lewellin, 3 Leigh 609; Beale v. Wilson, 4 Munf. 380; Cunningham v. Mitchell, 4 Rand. 189; Bowyer v. Chesnutt, 4 Leigh 1; White v. Toncray, 9 Leigh 347 ; Lessor of Fisher v. Cockerell, 5 Peters’ R. 248.
   Baldwin, J.

delivered the opinion of the Court.

The motion in this case to quash the writ of extendi facias, and the inquisition thereupon in the proceedings mentioned, was not made between the proper parties. This sufficiently appears upon the face of the judgment itself, and more distinctly from the writ and inquisition which it quashed; and into these we are at liberty to though not incorporated into a bill of exceptions, inasmuch as they must of necessity have entered into the consideration of the Court below, and formed the basis of its judgment, which without reference thereto would be wholly inoperative, and consequently a mere nullity. It was therefore the duty of the clerk of that Court to treat those record proceedings, which were the very subject of the Court’s action, as part of the record of the cause ; and they cannot be regarded by the Appellate Court, as irrelevant or unauthenticated.

It thus appears that the motion to quash was not made by the defendants in the execution, nor against the plaintiff therein, but by persons claiming under the latter, we know not how or what, against a person claiming under the former, in what way we can only conjecture. It seems that the defendant in the motion was the administrator of the assignor of the debt for which the plaintiff in the execution recovered his judgment; but that could give him no claim under the execution. It may have been that he claimed by an assignment of the judgment or execution, but neither of these is assignable at law, and he could acquire only an equitable interest therein.

It matters not, however, what may have been the respective claims of the plaintiffs and the defendant in the motion: they could in the nature of things have none that a Court of Law will recognize upon such a motion, which must be founded upon the irregularity, or abuse, or discharge of the process, in reference to the parties thereto; and others who are not parties thereto, and cannot be made so, must resort to other remedies, if any they have.

• It is true that a stranger may acquire an equitable right to the benefit of the execution, or to the property upon which it is levied, and such equitable right may in most cases give him authority to sue out and conduct the process, or to object to its regularity or validity; but he cannot do so by proceedings in the case, in his own name, upon or against the process, for the purpose of enforcing or abrogating the same: he must do it in the name of a legal party to the process, or one who can be made so. And this authority so derived to use the name of a party to the process of a Court of Law, will be so far recognized by such Court as to preclude the intervention of such party, for the purpose of defeating it. But a Court of Law cannot tolerate the intromission of equitable claimants into or against its process, as if they were legal parties thereto; which would break in upon its forms and modes of administering justice, and present for its adjudication collateral and indeed irrelevant questions arising out of the derivation of their interests; for equitable claimants can acquire no better or other right to prosecute or defend the process under or against which they claim, than that of the parties from whom they derive their interest.

This view of the subject renders it unnecessary, and indeed improper, to decide whether the motion in question could have been sustained upon its merits, between proper parties thereto. It is enough that the plaintiff in error is aggrieved by being harassed and subjected to costs, on a motion to which he and the appellees were not proper parties.

It is therefore considered by the Court that the judgment of the Circuit Court is erroneous; and that the same be reversed and annulled, with costs. And this Court proceeding to render, &c., it is further considered that the motion of the defendants in error be dismissed with costs.  