
    Ex parte, Charles Theodore Cark.
    The holder, by verbal transfer of the payee, of an unnegotiable note sued in the name of the payee for the benefit of the holder, has a right to the money when collected, in preference to the judgment creditors of the payee ; and this is such a right as the Court will enforce on a motion for a rule against the sheriff.
    BEFORE GANTT, J., AT COLLETON, SPRING TERM, 1837.
    This was a rule against the sheriff to stow cause wby certain moneys collected on executions taken out in the name of Samuel Jamison, should not be paid over to Charles Theodore Oark. In support, of the rule, the following affidavit was submitted.
    
      “ Personally appeared before me J. Drayton Dawson, wbo made oath that Charles Theodore Cark put in this deponent’s bands for suit, three sealed notes, each of which was drawn by Thomas Eumph and John Go Martin, payable to Samuel Jamison or bearer; that the said Cark at this time stated to this deponent in conversation, that he had paid valuable consideration for the notes in question, and that he supposed, as the notes were made payable to bearer, the delivery of the notes to him by Jamison for value received, made him the owner of them; and this deponent further saith that he verily believes this was a bona fide transaction between Jamison and Cark, and that no part of the money made on the executions, would have ever passed into the hands of the said Jamison, if it had not been detained in the possession of the sheriff; and that this deponent, in instituting the suits, only used the name of Jamison to comply with the forms of law, their being no written assignment or endorsement on said notes.
    (Signed) J. DRAYTON DAWSON.”
    
      Sworn to this 6th of April, 1837.
    O. R. Brewster, Q. H.
    His Honor dismissed the rule — being of opinion, from the evidence submitted, that the legal interest in the notes had not passed from Jamison; and that the question whether the transfer to Cark had been bona fide or not, was a matter which the Court was not authorized' to determine on the motion submitted.
    The plaintiff appealed on the following grounds:
    1st. Because the Court will look into the rights of the real plaintiff, and will not allow the nominal plaintiff to divest them.
    2nd. Because the debt having been assigned to Cark, the money collected on.the judgments ought not to be subjected to pay executions against the assignor.
    3rd. Because this motion is in the nature of an application to the equity of the Court, and it has jurisdiction to grant it.
    4th. Because the rule should have been made absolute for other reasons.
    
      Bailey and Dawson, for the motion.
    
      Henderson, contra.
   Butler, J.,

delivered the opinion of the Court.

The facts in this case, as established by proof or conceded by the parties, are these: Charles Theodore Cark for valuable considerations, acquired by verbal transfer and delivery of Samuel Jamison twó sealed notes, made by Thomas Rumph and John Martin, and payable to the said Jamison or bearer, — Cark put the notes into the hands of Mr. Dawson, an attorney at law, with instructions to sue on them for him. The attorney, with a view of bringing his case properly into Court, brought action, recovered judgment and lodged execution in the name of Jamison, but for the benefit of Cark. At the instance of Jamison’s execution creditors, the sheriff holds the money which he has collected, subject to the executions in his office against Jamison; and this case comes up as a rule against the sheriff to show cause why the money should not be paid to Cark, the rightful owner. The presiding Judge discharged the rule for the reasons stated in his report.

Whatever may be the character of Cark’s right to the money, whether legal or equitable,.it.is very evident that it is applicable to executions against Jamison ; for he, having divested himself to all right to the notes before they were put in suit, his creditors cannot apply the money arising from them to their executions ; this would be to take that which did not belong to Jamison to pay his debts. The sheriff cannot retain the money for any such purpose, but must pay it to some one entitled to receive it. Cark from the facts has clearly an equitable right to the money, and such a right as' has been too frequently recognised and enforced in-Courts of law both by adjudications in England and in this State now to be questioned. He had certainly the right to receive the money while he had the notes in his’ actual possession, and surely he cannot be in a worse position because his agent has collected it for him. The rule should have been made absolute, and that it may be, a new trial is. granted.  