
    Potts & Joor v. John S. Richardson.
    Where one advanced money to procure indulgence for the defendant on a writ of jd. fa. and the payment was made to the plaintiff’s attorney, under the express stipulation that the lien of the judgment should be preserved, and the judgment assigned to him: Held hot to be a payment and extinguishment of the judgment pro tanto; but that the lien was preserved, and a subsequent assignment to the person, who advanced the money, operated to vest the judgment in him with all its incidents.
    Tried before Mr. Justice Johnson, at Sumter, Fall Term, 1830.
    Assumpsit for money had and received to the use of the plaintiffs. Mrs. Elizabeth. Carson obtained judgment against William G: Richardson, sometime in 1821, sued out a ft. fa. and directed her attorney forthwith to enforce it. The present defendant, a brother of William G. Richardson, agreed to advance a part of the debt, on condition that indulgence should be granted for the residue, that the attorney, should make such an entry in his books, as would preserve the lien of the judgment, and that the judgment should be assigned to him by the plaintiff. The condition was accepted, and the defendant paid the sum of $1112, 58 to the attorney. In 1822, the present plaintiffs obtained judgments against William G. Richardson to a large amount, and lodged executions thereon. In 1825, the property of William G. Richardson was sold by the sheriff, who after satisfying the balance remaining due on Mrs. Carson’s execution, paid the sum of $1112, 58, to the present defendant. Subsequently to this payment, but prior to the commencement of this suit, Mrs. Carson duly executed an assignment of her judgment to the present defendant. The plaintiffs contended, that the payment made by the present defendant, in 1821, extinguished Mrs. Carson’s judgment pro tanto, and that her subsequent assignment was inoperative and void; that having the oldest liens on the property of William G. Richardson, they were ex ceejuo et bono entitled to the money which the present defendant had received from the sheriff in 1825 : And this action was brought to recover it.
    His Honor ordered a nonsuit, with leave to move in the Court of Appeals to set it aside ; and the plaintiffs now moved accordingly.
    
      Acts of 18J 6 p. 20.
    Mayrant, for the motion.
    Cited Reed v. Pruyn & Staafe. ^ j0jlns_ 426. Sherman v. Boyce, 15. Id. 443.
    Branding, contra.
    
    Cited Dunn v. Snell. 15. Mass. 481. Newman v. Crocker. 1 Bay, 246. The question in the present case jiag ^0cn a]rea(jy decided by this Court in Carson v. Richardson, 3 M’C. 328; which is the same case under a different title. Independently of the authority of that decision, it is maintained by reasoning, which renders further argument a supererogation. The cases in 7 and 15 Johns, are based exclusively on the policy of prohibiting sheriffs and their deputies from trafficking in executions.
   Johnson J.

delivered the opinion of the Court.

I had thought that the opinion of the Court on the rule obtained in the case of Carson v. Richardson, 3 M’C. 328, would have superseded this action and put an end to this litigation, especially when aided by the additional fact that Mrs. Carson in pursuance of the contract with her attorney, has made an assignment of the judgment against William G. Richardson to the defendant, and without intending to add anything to what is said of the case there stated, I will briefly notice some of the arguments now raised.

The burthen of the present motion, is, that Mrs. Carson’s judgment against William G. Richardson, was extinguished pro tanto by the money advanced by the defendant; and as the balance was collected on execution, there was nothing left to assign. The fact of the agreement to assign is conclusively proven by the execution of it by Mrs. Carson in person. This argument is, I think, fully answered in the case before referred to, nor is it helped by the cases of Reed v. Pruyn & Staats, 7 Johns. 426, and Sherman v. Boyce, 15 Johns. 443. These cases arose out of contracts entered into by the defendant in the execution with the sheriff and the deputy, and they turn upon the inexpediency of permitting a sheriff to buy up executions, and a conclusive argument in support of them, is, that the defendant had nothing on the executions which he could assign, his liability to pay the amount was all. Here there was in effect an agreement to assign, and an execution of it in writing, which, under a late aet ^le legislature would have authorized the defendant to sue upon it in his own name.

Motion refused.  