
    *Smith & Rickard v. Triplett & Neale.
    November, 1833.
    Sheriff’s Return — Amendment—Case.at Bar. — Upon a bond assigned for valuable consideration, the assignees bring suit against the obligor, recover judgment, and sue out a fi. fa. which is levied, and a forthcoming bond taken, and that being returned forfeited, execution is awarded thereon against principal and surety, and a fi. fa. is sued out on the forthcoming bond; andón this execution, the sheriff returns nu]la bona as to the surety but not as to the principal; then the assignees bring suit against the assignors, and after trial and verdict for defendants, court allows the sheriff to amend his return, and to return nulla bona as to the principal in the forthcoming bond; and gives plaintiff leave to amend his declaration, and to count on the amended return: Held, it was right to permit the sheriff so to amend his return, and to permit the plaintiffs so to amend their declaration.
    Same — Conclusiveness—Case at Bar. — In the action between the assignees and assignors the sheriff’s return of nulla bona on the execution against the obligors in the forthcoming bond, though amended after the assignees’ action and five years after the return, so as to shew the insolvency of both, is conclusive evidence of such insolvency.
    Same — Same—Same.—In such case, the insolvency of the debtors might be proved by other evidence, but the assignees have a right to the conclusive evidence of the sheriff's return.
    Forthcoming Bond — Insolvency of Obligors — Witness— Deputy Sheriff. — It seems, the deputy sheriff in whose hands the execution on the forthcoming bond was placed, is a competent witness to prove the insolvency of the obligors.
    
      Judgment on Assigned Bond — Satisfaction—Forthcoming Bond. — The talcing oí a forthcoming "bond, on a judgment and execution against the obligor of an assigned bond, is not such a satisfaction of the judgment, as trill preclude the assignees from hating recourse against the assignors.
    Same — Execution Nuiia Bona — Right of Assignee against Assignor. — When assignees have recovered judgment on the assigned bond, and sued execution against the obligor, and that execution is returned nulla bona, they are entitled to recourse against the assignors: and it is no defence for the assignors to shew neglect or malfeasance in the sheriff; the assignors, as parties injured, may sue the sheriff for such misconduct; the assignees are not bound to sue him. before they have recourse against the assignors, upon the contract of assignment.
    Assumpsit by Triplett & Neale against Smith & Rickard in the circuit court of Fauquier. The original declaration contained a special count' stating, in substance, that the defendants assigned a bond of one Wyatt to the plaintiffs for valuable consideration; and the plaintiffs, as assignees of the defendants, promptly commenced and diligently prosecuted a suit against Wyatt on the bond, in the circuit court of *Fauquier, recovered a judgment, and sued out a fieri facias thereon, which was put into the hands of the sheriff of Fauquier, and by him levied on the property of Wyatt, who thereupon gave a bond with surety, for the forthcoming of the property at the time and place appointed for the sale thereof, which was returned forfeited; and execution on the forthcoming bond being afterwards awarded, the plaintiffs thereupon sued out a fieri facias against Wyatt and Holmes his surety in the forthcoming bond, which was put into the hands of Smith, deputy of Edmunds, sheriff of Fauquier; who made the following return thereon — “This execution, together with sundry other executions, was levied on one negro man slave, the property of Holmes [the surety] and after deducting the amount of other executions entitled to priority to this, and the sheriff’s commissions, there remained the sum of 45 dollars, which I have paid to J. G. the plaintiffs’ attorney: and I have made the further sum of 14 dollars, which I am ready to satisfy after deducting my commission; which latter sum is the proceeds of the sale of the said Holmes’s property, contained in his schedule when he took the oath of an insolvent debtor under a ca. sa. in another case, but of a date subsequent to this execution; 1st August 1822.” By reason whereof the defendants became liable to pay the plaintiffs the balance of the sum mentioned in Wyatt’s bond so assigned to them, and being so liable, in consideration thereof, assumed to pay the same &c. To this special count, there were added the common money counts, 1. for money had and received ; 2. for money lent and advanced; and 3. for money paid, laid out and expended. The defendants pleaded the general issue, and the statute of limitations.
    At the trial of the issues, the plaintiffs having proved the case alleged in the special count of the declaration, and given in evidence the return ox the deputy sheriff Smith on the execution upon the forthcoming bond (the same which was literally copied in that count) called Smith, the deputy, as a witness, to prove the insolvency of Wyatt, the principal ^debtor; but the court rejected him as incompetent. There was, then, verdict for the defendants. The plaintiffs moved the court to set it aside, and direct a new trial, upon the ground that the testimony of Smith had been improperly excluded; and the court did set aside the verdict, and directed a new trial.
    And on the same dajr, the court, on the motion of Triplett & Neale, gave leave to the deputy sheriff to amend his return on their execution against Wyatt and Holmes on the forthcoming bond (though more than five years had now elapsed since the original return was made) by adding, immediately after the date thereof [see the copy of it in the statement of the declaration] the following words — ‘ ‘And no property of the said Wyatt found to levy this execution on.” And, at the same time, the court gave the plaintiffs leave to amend their declaration.
    The amended declaration was the same as the other, except that in the recital of the sheriff’s return on the execution on the forthcoming bond, the words above mentioned, just added thereto, by way of amendment, with leave of court, were recited as part of the return.
    The defendants put in a general demurrer to the amended declaration, and pleaded the general issue, and the statute of limitations.
    The court overruled the demurrer. And upon the trial of the issues, four bills of exceptions were filed by the defendants, to opinions of the court.
    1. The first stated, that the plaintiffs to sustain the issues on their part, offered in evidence, the bond of Wyatt, on which was indorsed -an assignment to them by the defendants for value received, and the record of the proceedings in their suit against Wyatt on the bond, which now corresponded exactly with the statement thereof in the first count of the amended declaration ; the return of the deputy sheriff Smith, upon the execution on the forthcoming bond, as now amended by leave of the court, and as it was set forth in that count, being given in evidence as part of the record. ^Whereupon, the counsel for the defendants objected to the words added by the amendment to the original return, as above mentioned, going to the jury as evidence in support of either the first or the second count in the declaration; but the court overruled the objection, admitted the evidence, and instructed the jury, that the amended return was conclusive evidence of the insolvency of Wyatt, unless they should believe from the evidence, that the said return was fraudulent or collusive (of which the defendants offered no evidence); to which opinion the defendants excepted.
    2. They then offered evidence to prove that Wyatt had, up to the return day of the plaintiffs’ execution on the forthcoming bond, and for a long time afterwards continued to have, sufficient property in his possession, of which the debt, interest &c. in the execution mentioned could have been levied; but the court rejected this evidence ; and the defendants excepted.
    3. The plaintiffs having offered in evidence, a copy of a writ of ca. sa. sued out by one Loyd against Holmes (Wyatt’s surety in the forthcoming bond) which appeared to have been served on Holmes after the plaintiffs’ execution on the forthcoming bond against Wyatt and Holmes was in the sheriff’s hands, and before the return day thereof, and on which ca. sa. Holmes took the oath of insolvency; and having also offered in evidence, along with this ca. sa. a copy of the schedule of Holmes’s effects surrendered on his taking the oath of insolvency; the defendants, thereupon, offered evidence to prove, that Holmes had, at the time he took the oath, and long afterwards continued to have, other property, besides that mentioned in his schedule, sufficient to satisfy the plaintiffs’ execution; but the court rejected this evidence. The defendants excepted.
    4. They then offered evidence to prove, that the plaintiffs’ execution on the forthcoming bond, against Wyatt and Holmes, had been in fact levied by the sheriff on a slave of sufficient value to satisfy the debt, which slave was afterwards ^discharged by the sheriff, without the plaintiffs’ consent; but the court rejected this evidence also; and the defendants excepted.
    There was a verdict and judgment for the plaintiffs, for 129 dollars with interest &c. to which this court, on the petition of the defendants, allowed a supersedeas.
    Stanard, for the plaintiff
    in error, insisted, 1. That the court ought not to have set aside the verdict rendered at the first trial on the original pleadings; for, he said, the deputy sheriff Smith was an incompetent witness to prove the insolvency of Wyatt, since proof of that fact was necessary to exonerate himself from the charge of neglect of duty, or of malfeasance in office, for which he was liable to an action at the suit of the plaintiffs. 2. That, at the time the action was brought, there was no good cause of action, inasmuch as the sheriff’s return on the execution on the forthcoming bond, did not shew that Wyatt was insolvent. The amendment of the return, after the action brought, could not suffice to maintain it. Indeed, the leave for the sheriff to make the amendment of his return, was asked for the sole purpose of procuring matter necessary to maintain the action already pending; and the court ought not to have permitted such an amendment to be made, to answer such a purpose. 3. That the judgment recovered ■ against Wyatt on the assigned bond, was completely satisfied and extinguished b3' the forthcoming bond; and if the forthcoming bond was insufficient to secure the debt, the sheriff was liable to 'Triplett Sc Neal for taking ’insufficient security. They, and they alone, had remedy on the forthcoming bond; they, and they alone, had remedy against the sheriff for taking an insufficient bond: the assignors, certainly, were not entitled to institute any proceedings on the forthcoming bond, or against the sheriff on account of its insufficiency. 4. That the sheriff’s return, that, Wyatt was insolvent, especially as the return, in that particular, was made ex post facto to fit the plaintiffs’ case, ought not to have been taken as con-elusive evidence of the *fact of Wyatt’s insolvency; and the proof of his solvency offered by the defendants ought to have been admitted. 5. That, as it appeared by the plaintiffs’ own1 shewing, that a ca. sa. sued out by another creditor, had been served on Holmes, the surety of Wyatt in the forthcoming bond, while Triplett & Neale’s execution thereon was in the sheriff’s hands, which, therefore, bound all his effects; and as it appeared by the return on Triplett & Neale’s execution, that the effects surrendered in Holmes’s schedule had been sold to satisfy the ca. sa. creditor, in the first place, and only 14 dollars, the balance of the proceeds, had been applied to the credit of Triplett & Neale’s execution, whereas the whole of the proceeds ought to have been paid to them; here was clear proof, by the plaintiff’s own shewing, that they had not pursued their remedy on the .forthcoming bond, as efficiently as they might and ought to have done, before they had recourse to their assignors, Smith & Rickard. And 6. That as the assignors by the contract of assignment, in effect, only warranted the solvency of Wyatt the obligor, the evidence offered to prove, that Triplett & Neale’s execution on the forthcoming bond, had been actually levied on a slave, and that this property was released by the sheriff, ought to have been admitted. It would have established the solvency of the debtors beyond question; and it would have shewn, that the sheriff had made himself liable to the plaintiffs, for the whole debt. They ought to have pursued the remedj' which the law gave them against the sheriff, and which must have been amply sufficient.
    Leigh, for the defendant
    in error, answered, 1. That the verdict on the first trial was properly set aside, on the ground that the testimony of Smith the deputy sheriff to prove the insolvency of Wyatt, had been excluded. Smith was a competent witness: he stood perfectly indifferent between the parties: if Wyatt was in fact insolvent, that would be a defence for him at the suit of either party; if he was solvent, either party, the defendants as well as the plaintiffs, might maintain an action against him for neglect of official *duty. 2. He said that, though in an action by the assignee against the ■ assignor of a bond, the insolvency of the obligor may be proved by other evidence 'than the return of nulla bona on an execution against him, yet the assignor has a right to demand such a return, if it be true. The fact of the obligor’s insolvency, was the foundation of an assignee’s right to recourse against the assignor, and, in this case, the fact existed, if at all, before the action brought; and the amended return was only that evidence of the preexisting fact, which the assignees had a right to require from the sheriff. 3. The forthcoming bond is nothing but part of our process of execution; neither Triplett & Neale nor the sheriff could have prevented Wyatt from giving it: nor was it true, that the sheriff was liable if he took surety in the bond who turned out after-wards to be insufficient; he was liable only in case the surety was insufficient at the time he was received as such. 4. The sheriff’s return that Wyatt was insolvent was conclusive; Stuart v. Goodall, 2 Hen. & Munf. IOS. The evidence offered of the solvency of Wyatt and of his surety Holmes, was nothing to the purpose, unless it was also proved that this was known to the plaintiffs; and if such evidence as the court excluded were admissible, an assignee, after having exerted the utmost diligence without effect, might be surprized, in his action against the assignor, at the trial, and defeated, by evidence of the solvency of the obligor. S. As to the other matters which Smith & .Rickard, in the court below, attempted to set up in their defence, he said, they amounted at the most to this, that the sheriff had been guilty of such gross neglect or malfeasance in office, as made him liable to Triplett & Neale for the debt. Now, in the first place, it was not pretended that Triplett & Neale had been apprised of this misconduct of the sheriff, though it seemed Smith & Rickard were; and, in the next place, if the sheriff had made a false return as to the insolvency of Wyatt, or been guilty of any misconduct or neglect, Smith & Rickard were parties aggrieved thereby, as well as Triplett & Neale, and had as clear a right to an action against him. *1 Rev. Code, ch. 78, \ 17, p. 280, ch. 134, ? 48, p. 542. And then the question was, whether the assignees were bound to resort to and exhaust their remedy against the sheriff, before they could have recourse to the assignors? or had a right to recourse against the assignors immediately, leaving them to pursue their remedy against the sheriff? The assignees were not bound to exhaust every possible remedy against the obligor; much more were they not bound to prosecute their remedy against the sheriff; especially, when it did not appear that they were apprised of his having made himself liable, till their assignors alleged the fact in their defence at the trial. According to the objections of this court, the assignees had used such due diligence in their effort to recover the debt of Wyatt the obligor, as entitled them to recourse against the assignors. Mackie v. Davis, 2 Wash. 219; Stuart v. Goodall, 2 Hen. & Munf. 105; Barksdale v. Fenwick, Id. 113, in note; Harrison v. Raine, 5 Munf. 456; Catón & Veale v. Lenox, 5 Rand. 31.
    
      
      Sheriff’s Return — Amendment—Time of. — A court from which process is issued may permit the sheriff’s return thereon to be amended at any time, even though a suit or motion founded on the original return be then pending, and even though the proposed amendment be inconsistent with the original return, and take away the foundation of the suit or motion. Stone v. Wilson, 10 Gratt. 533, citing the principal case, and Wardsworth v. Miller, 4 Gratt. 99 (see also, foot-note to this case). To the same effect, the principal case is cited in Stotz v. Collins & Co., 83 Va. 429, 3 S. 13. Rep. 737.
      On a motion to set aside a judgment and all the proceedings subsequent to the return of the summons on account of the defective return thereof, the sheriff may amend his return, on leave obtained from the court for that purpose, and thus cure the defect. To this effect, the principal case is cited in Goolsby v. St. John, 25 Gratt. 160; foot-note to Walker v. Com., 18 Gratt. 14.
      See further on this subject, monographic mote on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
    
      
      Same — Conclusiveness.—In McClung v. McWhorter, 47 W. Va. 150, 34 S. E. Rep. 741, Bhannon, J., speaking for the court, said: “The proposition is to deny the facts stated in the sheriff’s return. In many states this can be done, but in this state a sheriff’s return on process emanating from the courts (judicial process) cannot be contradicted by parties or privies in its statement of such facts as the law requires him to state make the return good. The party must, for reparation of his injury, look to an action against the sheriff on his bond for false return. This may seem hard, but public policy requires, for stability of judicial proceedings, that the return of the sworn officer stand. It is a long-established rule with us, and based on sound principles and policy. Its reason, drawn from the United States supreme court, is ably defended in Preston v. Kindrick, 49 Va. 760, 37 S. E. Rep. 588, refusing relief in equity against a decree by default where relief was asked on the ground of false return. I will only refer to the cases: Goodall v. Stuart, 2 Hen. & M. 112; Smith v. Triplett, 4 Leigh 590; Bowyer v. Knapp, 15 W. Va. 277; Stewart v. Stewart, 27 W. Va. 168 (syl., point 10): Rader v. Adamson, 37 W. Va. 582, 16 S. 12. Rep. 808; Peck v. Chambers, 44 W. Va. 270, 28 S. E. Rep. 706: Ramsburg v. Kline, 96 Va. 465, 31 S. E. Rep. 608. This doctrine does not apply to notices to take depositions, or other notices given by parties, nor to returns by private parties. Bowyer v. Knapp and Chambers v. Peck, supra. 1 remark, too. that, where a suitor colludes with the officer to make a false return, It Is not conclusive. That is the exercise oí jurisdiction to annul a judgment for fraud. ”
    
    
      
      Judgment on Assigned Bond — Satisfaction—Forthcoming Bond. — See principal case cited in Garland v. Lynch, 1 Rob. 565.
    
   CARR, J.

The assignee of a bond or note must use due diligence to recover from the obligor or maker, before he can resort to the assignor. What is due diligence, has been left by the court to depend on the particular circumstances of each case. Generally speaking, the assignee must sue; must pursue a judicious course of proceeding; obtain a judgment, and the return of nulla bona on a fi. fa. These seem to be the general rules established by the cases. The exceptions to them, it is unnecessary to state. It is truly said by judge Roane, in Mackie v. Davis, that “the assignee of a bond acquires a legal right to bring suit upon it, and to receive the money, discharged from any control of the assignor over the subject.” It is this legal right, which imposes on the assignee the duty of pursuing (as the same judge styles it) a judicious course of proceeding; by which, I presume, is meant, that he shall take such steps for the collection of the debt, as a prudent obligee would generally pursue.

'x'In the case before us, there was a judgment and execution, a forthcoming bond taken, and an execution on that. The first return on this execution was certainly not such as, of itself, to establish the insolvency of the obligors in the forthcoming bond; but the court permitted the sheriff to amend his return ; and this, I think, it had a right to do, though it was after the lapse of five years, and after a verdict for the defendants at a former trial, and a new trial granted in this cause. The amended return, if it be taken to relate back to the date of the first (as I suppose it does) amounts to a return of nulla bona as to Wy’alt; and the case of Stuart v. Goodall decides, that the assignor, in a suit against him, shall not be permitted to introduce proof to contradic: such a return. But what was the return as to Holmes? So far’from amounting to a return of nulla bona, it shewed that there were goods of Holmes, and that this execution was levied on some, but not on all of them. This return then does not establish that sort of insolvency of Holmes, which the court will not suffer to be contradicted. The proof, indeed, that at this time Holmes had properly sufficiént to satisfy this execution, other than that levied on, would stand perfectly well with the sheriff’s return. Such proof the defendants offered, but the court excluded it. In this, I think, the court erred; for such proof was surely relevant both to the question of insolvency and of due diligence. What bearing it might have on those questions, was for the jury, with whom it remained to decide upon all the circumstances, whether the plaintiffs had made out a case which entitled them to come upon the assignors. Farther, to prove that while this same execution was in the hands of the sheriff, there was other property of Holmes, the defendants offered evidence to prove, that this execution was levied upon a slave of value sufficient to satisfy the execution, and discharged by the sheriff without the assent of the plaintiffs : and this too was excluded by the court, though it did not contradict the sheriff’s return, and bore, I think, upon both questions before the jury. It went to convict *the sheriff of a gross violation of duty, such as would have made him clearly liable for the debt; and it might have fairly raised the question, whether due diligence, involving a judicious course of proceeding, would not have required the assignees to take steps against the sheriff, before coming upon the assignors? I do not understand that any case in this court has gone so far as to say that the assignee, while holding the uncontrolled ownership and management of the debt, may pass by the grossest blunders and mal-conduct of law officers ; conduct rendering them unquestionably liable; conduct which clearly prevented the making the money out of the debtor; — and come directly upon the assignor. I have seen no such case; and I think it would be bad policy, as well as hard measure; it would tempt the as-signee to connive at the malpractices of sheriffs, and to hurry over in the most careless and summary way, the process which was to bring him upon the assignor. The assignor is quite as much entitled to the favor of the court as the assignee. He gives the whole control of the case out of his hands, and before he is compelled to pay the debt, is entitled to demand proof, that after an honest and diligent pursuit of his debtor, the money cannot be made. X am of opinion that the judgment should be reversed.

TUCKER, P.

In the case of Mackie v. Davis, this court, in establishing the liability of the assignor to the assignee, who after due diligence to recover from the obligor has failed to receive the amount of an assigned bond, carefully avoided, nevertheless, to lay down any rule as to what amounts to due diligence. The court has since, with equal caution, declined the attempt to draw the precise line at which the assignor’s liability commences. It is wise, I think, in their successors to follow the example. The demarcation will best be made by successive decisions, which will serve, as landmarks to those who engage in the traffic for bonds. The decisions of the courts on such questions, if they do not stand upon the elevated ground of being rules of property, *are at least the law of .contracts. Those who buy and those who sell, look for the obligations which are assumed by the assignor, to those decisions. Hence the principle stare decisis, is peculiarly applicable to cases of this description. Upon these considerations, I shall take the case of Stuart v. Goodall, which has never been impugned, as not now to be questioned; modified at least as it is by the opinion of judge Roane in the case of Barksdale v. Fenwick. And on the same ground, I shall consider the cases of Caton & Veale v. Lenox, and Harrison v. Raine, as not to be now questioned. With these preliminaries, let us proceed to the consideration of this case. It comes to us upon exceptions to the opinions of the court who tried the cause, and those opinions constitute therefore the subject of examination.

1. I do not perceive, that, there was an exception to granting the new trial, but as this matter was made a subject of discussion, I shall observe, that I think the new trial was rightly granted to the plaintiffs, because the verdict had been found under an erroneous instruction of the court. The return of the sheriff as originally made, having omitted to return nulla bona as to Wyatt, the plaintiffs were indeed without the benefit of that conclusive return; but, as the action might have been sustained by proof of insolvency, without even the institution of a suit, and as such proof is also-a sufficient excuse even for negligence in the prosecution of one, if it could have been sufficiently made out that no diligence would have been availing, I think it clear, that the plaintiffs should have been permitted to prove that Wyatt was in truth insolvent when their execution issued.

2. Upon the second trial, the amended return was produced in evidence, and was admitted. I think it was properly admitted. It did not give a cause of action by relation, but it was evidence of a fact which existed before the suit, and which might have been proved by other evidence. The plaintiffs, moreover, had a right to have had this return of the sheriff as to the fact, before the suit brought, and -were therefore entitled to it nunc pro tunc: and there is less reason *for the objection to its admissibility, since it did not contradict a former return, but only supplied an omission in it.

3. This return having been admitted, the defendant then offered to prove that Wyatt at the date of that execution had other property. This evidence was rejected, and I think properly. It is not stated, that the property so supposed to exist, was known either to the sheriff or to the assignees; and the fact, therefore, did not go to fix a malfeasance on the sheriff or negligence in the plaintiffs. Nothing is more possible, than that a man may have property unknown to the sheriff and the assignee, though the sheriff may honestly and truly have returned nulla bona as to him. The assignor, as judge Roane tells us, may well be presumed-to know more of the obligor and his property than the assignee. It was, probably, for that reason among others, that in Stuart v. Goodall, the court justified the peremptory refusal of the county court of Henrico, to permit the introduction of evidence to prove that Beverley, the obligor, had goods and effects sufficient to satisfy the execution at the time of the sheriff’s return. Judge Tucker approved this refusal, expressly on the ground, that the admission of the evidence would have been to permit the return to be contested, whereas it was incontrovertible between the assignee and assignor. Judge Roane and judge Fleming concurred in refusing it, though upon grounds somewhat different, and perhaps yet stronger. They seem to have considered the return conclusive upon the rights of the parties, unless the assignee had been proved to have known that there was other property, or that any other execution would probably have produced the money. Many a bond has been bought and sold on the faith of that case, which may therefore be considered as entitled to peculiar respect. It has been familiarly considered as the law of the subject, for more than- twenty years.

4. The plaintiffs having introduced the return upon the execution against Holmes, shewing that only a certain sum could be made out of him, and proof that between the date *of the issue of their execution and its return, he had taken the oath of insolvency, the defendant then offered evidence to prove that Holmes had other property, without however offering' to prove that the sheriff or assignee knew of it. I can see no material distinction between this and the case arising under the last mentioned bill of exceptions. In that, the return which it was proposed to controvert, was a return of nulla bona; in this, it is the return that the defendant in the execution had taken the oath of insolvency. He might, it is true, have been made to swear out again under a ca. sa. issued at the suit of Triplett & Neale; but there was no obligation to sue that ca. sa. under the circumstances, nor could the proof that he had other property be proper, unless accompanied by proof that the assignees knew of it. Without such knowledge, they could not be charged with want of due diligence.

5. As a last effort the defendants offered evidence to prove, that the execution on the delivery bond was levied on a slave who was discharged by the sheriff without the assent of the plaintiffs. The plaintiffs, then, were in no fault. The sheriff, if the fact was so, was guilty of a malfeasance, and is liable for the debt. To whom? That depends precisely upon the question, whether, in case of the sheriff’s malfeasance, the assignee is or is not bound to pursue him? If he is not bound to pursue him, then the wrong done is a wrong done to the assignor, who may have his action on the case. My own opinion is, that where the debt is not made, and where the sheriff is only responsible for malfeasance, the assignee is not bound to pursue him. It would clog and embarrass assignments too much to require this; and, moreover, it is better that the party ultimately interested in establishing his defaults, should institute the proceeding for the purpose. This court seems, indeed, to have been averse to requiring of the assignee more than a diligent pursuit of the obligor, and has exonerated him from the necessity of pursuing collateral, uncertain, and merely contingent remedies. Hence the decision, that though there be ^special bail, and though there has been a ca. sa. returned non est inventus (which prima facie makes the bail liable) yet it is not necessary to pursue him; for, peradventure, he might still relieve himself by bringing in the principal before the return of the first scire facias executed, or of the second returned nihil. Such was the decision in Caton & Veale v. Lenox. And if the as-signee is not bound to pursue the bail, even where there is a moral certainty that he must be fixed with the debt (for, in that case, Hartshorne was proved to be out of the country, and resident in Baltimore), I cannot perceive the propriety of requiring him to proceed against a sheriff, in order to take the chance of fixing upon him a malfeasance, which may charge him with the debt.

Upon the whole, I am of opinion, that there is no error in the proceedings of the circuit court, and that the judgment ought to be affirmed.

CABT3LL and BROOKE), J., concurring with the president, judgment affirmed.  