
    H. R. Wilson vs. Ransom McElroy, et al.
    A legal right in the plaintiff to the matter in dispute, is the necessary foundation of every action at law.
    An assignee of a chose in action, at common law, could not maintain an action in his own name; the act of 1822, authorizing assignees, in certain cases, to sue, removes the common law inhibition only to the cases enumerated in the statute; as to all others, it remains in full force.
    The assignee of a judgment at law cannot maintain an action thereon, in the courts of this state, in his own name.
    . W. was declared bankrupt in Alabama, under the act of congress, and all ■ his effects transferred to H., his assignee in Bankruptcy. H. transferred a judgment in favor of W., against H. B. W. to L., who assigned it to H. R. W., who attempted to enforce the judgment, and was obstructed by E. and others; H. R. W. sued E. and others, for damages; held, on demurrer to the declaration, that the action should have been brought in the name of W., the bankrupt, or, at farthest, of H., his assignee in bankruptcy, for the use of H. R. W., the subsequent assignee.
    In error from the circuit court of Lauderdale county.
    The declaration in this cause was a special one on the case, in these words:
    
      “ The State of Mississippi, ) In circuit court,
    
      Lauderdale County. j November Term, A. D. 1843.
    “ Henry R. Wilson, as the assignee of James W. Long, who was the assignee of Ptolemy T. Harris, assignee in bankruptcy for the southern district of the State of Alabama, to whom Daniel Walker, and Jacob B. Walker, known and designated by the way and style of D. & J. B. Walker, made their assignment for the benefit of their creditors, according to the provisions of the act of the congress of the United States of America, in and for such cases made and provided, by his attorney complains of the defendants, Ransom McElroy, James Edwards, and James Barrow, being in custody, &e., of a plea of trespass on the case, &c., for that whereas on the 22d day of May, A. D. 1839, at the circuit court of the county aforesaid, they, the said D. & J. B. Walker, recovered, among others, a judgment for the sum of eleven hundred and fifty dollars for their damages, and also their costs of suit, against Horatio B. Washington, which said judgment remaining wholly unsatisfied on the 19th day of August, A. D. 1842, they, the said D. & J. B. Walker, among other rights and credits, made an assignment to the said Ptolemy T. Harris, assignee, &c., aforesaid, of the aforesaid judgment, who, on the 20th day of April, A. D. 1843, in virtue of the authority in him vested, as such assignee, using the style of P. T. Harris, made an assignment to the said James W. Long of the aforesaid judgment, who afterwards, to wit, on the same day and year last aforesaid, using the style of J. W. Long, assigned and transferred the aforesaid judgment to the said plaintiff, by virtue of which said several premises, he the said plaintiff became vested of all the legal and equitable advantages and benefits to be derived from said judgment. And the said plaintiff avei^s, that after the aforesaid assignment' of the said D. & J. B. Walker, as aforesaid, and before the commencement of this suit, Horatio B. Washington, the defendant in said judgment, having sufficient estate out of which the amount of the moneys by said judgment recovered against him could have been levied, for the use and benefit of the plaintiff in this suit, they, the said defendants in this suit, subtly contriving, and fraudulently intending, to cheat and defraud the said D. & J. B. Walker, and all persons claiming under them in this behalf, on the 18th and 30th days of December, 1842, without any lawful authority in the premises, but therein officiously intermeddling, caused and provided certain Ji. fas. to be issued upon certain other judgments rendered in the same court in favor of other parties, plaintiffs against the said Horatio B. Washington, and caused said Ji. fas. to be levied upon the estate and effects of the said Horatio B. Washington, to wit, two male negro slaves for life, of the value of one thousand dollars each, and caused the said estate so levied upon to be sold by the sheriff of Choctaw county, in the state aforesaid, they, the said defendants becoming the purchasers at the sheriff’s sale of the property so levied upon as aforesaid, they, the said defendants, then and there-agreeing to share among themselves the spoils of their fraud in this behalf, when in fact and in truth they, the said defendants well knew that the said judgment, on which they were thus proceeding, had long since, to wit, previous to the 19th day of August, 1842, been fully satisfied and discharged. And the plaintiff further avers, that afterwards, to wit, on the 19th day 'of June, 1843, he, as such assignee as aforesaid, having legal right so to do, caused a certain execution to be issued upon the judgment so assigned to him, in manner and form aforesaid, and directed to the sheriff of Choctaw county aforesaid, and caused him to be instructed to levy this said execution upon the aforesaid two certain male negro slaves for life, of the value aforesaid, which then the said defendants kept secreted in the county of Choctaw. And the plaintiff further avers, that the said defendants did not, nor would they suffer or permit the sheriff of Choctaw county aforesaid, to levy the aforesaid execution, so caused to be issued and directed by the plaintiff as aforesaid, with force and violence resisted the same, and thereby defeated the plaintiff", in collecting the moneys upon the said judgment, so transferred to him as aforesaid, by reason of which the said several premises, the plaintiff has sustained two thousand dollars damages, and therefore he brings his suit, &c.
    
      “ Evans & Geay,
    “ Attorneys for Plaintiff.”
    
    To this declaration the defendants demurred, and' assigned ten special causes; the court below sustained the demurrer, and the defendants bring the case here for revision.
    
      John Steele, for plaintiff in error.
    In this case, defendant, McElroy, assigned ten special causes of demurrer, and, as the case is probably the first arising under its own peculiar circumstances, which has come into this court for revision, more attention may be bestowed upon them than 'they could possibly be entitled to, under ordinary circumstances.
    The first cause assigned assumes a variance between the writ and declaration, in the description of the official character of Ptolemy T. Harris. A distinction is attempted to be drawn between the word “ commissioner,” used in the writ, and “ as-signee,” used in the declaration. If either of these words had really have been necessary in the writ, which is not admitted, a plea in abatement would have been the mode to take advantage of it.
    The purpose of the writ is, simply, to give the defendant notice who he is to answer, what form of action he is to be im-pleaded in, and what damages or thing the plaintiff wishes to recover; but certainly the plaintiff is not required so show his right in his writ, and if the clerk undertakes to do so for him, and mistakes, the plaintiff is not to be prejudiced by a clerical mistake.
    The second cause is too palpably frivolous to deserve notice. It assumes that D. & Jf B. Walker are suing for themselves and others. Such deduction cannot be drawn from any part of the declaration; the plaintiff sues in a derivative right, and introduces the names of D. & J. B. Walker, for the purpose only of showing the source of the derivation; and if those names are thus unnecessarily introduced, it will be regarded by the court as surplusage, under the rule, utile per inutile non vitiatur.
    
    The third cause assumes, as a cause of demurrer, the statement of “ certain other judgments,” on- which the defendants, without any lawful authority, proceeded, as being too general and uncertain. All the facts stated in that particular, in the declaration, must have been peculiarly within the knowledge of the defendants, and under the rule given by Stephens on Pleading, p. 414, “ Less particularity is required, when the facts lie more in the knowledge of the opposite party, than the party pleading.”
    If the certain other judgments had been the foundation of the action, then more certainty might be necessary; but such is not the fact, for they are only stated in connexion with a series of tortious acts of the defendants, all of which, when taken together, make out the cause of action.
    This cause comes peculiarly singular from McElroy. He is an attorney on the roll of attorneys of that court, though not in those cases of certain other judgments. And if it be true, as alleged in the declaration, that, without any lawful authority, in the premises, but therein officiously intermeddling, and fraudulently contriving, did sue out executions upon judgments which appeared by the sheriff’s return to be satisfied, it would be a matter of proof, all the facts about which he could not be ignorant of, and so far as a statement of certain judgments is connected with his tortious acts, more certainty could not be necessary to give him notice. Again, that pleading ip always sufficiently single and certain which will enable the adverse party to traverse a part so material as to defeat the action or defence.
    The fourth and fifth causes are both embraced in the same idea, and are clearly captious and frivolous. They assume that, because the defendants purchased property at sheriff’s sale, the plaintiff brought his suit. Such, however, is not the fact, nor does the statement lead to such conclusion. The statement objected to, shows evidently to be stated as a continued history of torts, ;by means of all which, when taken together, the plaintiff alleges he has sustained damages.
    The answer to the third cause applies with equal force to the sixth cause assigned.
    The seventh and eighth causes are so intimately connected that they may both be noticed under one. They assume, that the declaration alleges in one part, as a cause of action, an illegal levy and sale of certain property; and in another part, the hindering and preventing of a levy on the same property, as a cause of action. This, however, will be found erroneous also.
    The special action of trespass on the case is in the nature, somewhat, of a bill in equity. In this action there are three material things to be observed. 1.' The pleader must show the plaintiff’s right, and if derivative', he must show the source and connected line of derivation. 2. He must show the tortious or negligent acts of the defendants, whereby the plaintiff’s rights have been affected. 3. He must present those facts in such connection as that it shall appear on the record as a necessary consequence, that the plaintiff has sustained damage. This, it is conceived, the declaration has done, and no more. See 1 Chitty on Pleadings, on the special action on the case, 149, last paragraph, and loO-l/also 166, last paragraph, on disadvantages of this action. The court is also referred to Saunders on Pleading and Evidence, as to the Law of Rights acquired, under Proceedings in Bankruptcy.
    To single out any one of a series of acts, and say that particular act is no cause of action, or that it is a different cause of action from some-other act in the series, in this form of action, is certainly captious, a mere quibble. The declaration does not assume that any one of the circumstances is the cause of action, but, on the contrary, according to the peculiarity, pertaining to the special action on the case, after stating the plaintiff’s title, and the defendant’s tortious acts, concludes, “ by reason of which said several premises the plaintiff, hath sustained two thousand dollars damage,” &c. What could be more plain than that no one, but that all the acts taken together, form but one whole as the cause of action.
    The ninth cause is not true in fact. The venue as to the declaration is palpable, and as to the court whence the fi. fas. issued there could be no mistake, for- the circuit court of the county of Lauderdale is the only one mentioned, and when in an after part of the declaration the court is mentioned, no other could be understood.
    The tenth cause, as it is the usual one, .need not be noticed.
    In this case the court will perceive that the case is totally new, arising out of the act of congress for the relief of insolvent debtors, and that under such circumstances the -plaintiff must recover in this form of action for such wrongs, or he is without remedy, for it is not conceived that suit upon a tort can be instituted by the assignee for the use of a beneficiary, or person who purchases a ¡right at the sale of the assignee in bankruptcy. If a chose in action be sold by the assignee, still, before the .purchaser possesses himself of the right, it may be affected by other parties tortiously, and certainly he should not be required to sue in the name of the assignee for his use.
    The court did not only err in giving judgment in favor of the defendant McElroy, but also in adjudging that the plaintiff take nothing by his writ, when there were other defendants who have made no defence, &c.
    
      Pryor Lea., .for defendant in error.
    Notwithstanding the writ of error was taken on the judgment in favor of this defendant alone, without any judgment of the circuit court as to the two other defendants below, on whom process was regularly served, and no other proceeding was had as to them, yet, as the plaintiff desires it, if this court will recognize this writ of error as regular, and decide the merits, the defendant is willing; and, therefore, submits the following suggestions.
    The' demurrer to the declaration was rightfully sustained ;
    1. Because the plaintiff does not show in his declaration a legal right in himself to the judgment, (the execution of which he says was prevented,) so as to authorize suit in his own name for any such supposed wrong — for he professes only to be a second assignee of an assignee in bankruptcy — suing for a supposed wrong of a third party, in preventing a levy of the execution. And neither the common law, nor any statute, provides for such legal assignment.
    2. Because the declaration charges, that the levy of the execution was prevented by force and violence, and shows, that trespass instead of case uould be the proper action, if any would lie, the remainder of the pretended wrong being only an assertion of a claim of right, said to be fraudulent.
    3. Because the plaintiff himself, while charging fraud, appears merely as a volunteer, without merit, in the use of another’s right, never legally transferred,, on sufficient consideration.
    4. Because the plaintiff, if he has any right in the judgment, cannot assert it in this kind of action, but must take his remedy on the judgment directly — for the right of property cannot be tried collaterally in this form of proceeding — and it does not appear that the sale under which the defendants purchased was void, even if the defendants knew that the judgment had been satisfied, for our law allows, on certain terras, a subsequent continuance of the execution.
    
      Counsel for plaintiff in error, in reply:
    In answer to the first point, the plaintiff states a derivative right by assignment, and if such assignment does not vest him with a legal right to pursue a remedy for an injury done to his right, derivatively derived, by assignment, then true it is he has no remedy at law; and in fact, the true point in contest is, either that he can or cannot sue ip his own name.
    In answer to the second point, the supposed direct injury making trespass the proper remedy, it is answered that no such point is made in the special assignment of causes of demurrer, and as it is the province of the plaintiff to wave the tort, and go for the consequential damages, the defendant has admitted all that is sufficiently pleaded in substance. Is there sufficient in substance, in the declaration, to entitle the plaintiff to recover? Then by that admittance the judgment should be for plaintiff.
    To the third point it is respectfully submitted, that an as-signee cannot be merely a volunteer, without merit, in the use of another’s right.
    To the fourth and last point, that the plaintiff must pursue his remedy directly upon the judgment, and not test his right in this collateral way, this, in substance, is embraced in the first point. In all actions, ex delicto, the plaintiff must allege and prove an actual or implied right of property. If, on the trial, he could prove such derivative title, as he has alleged, would he then be entitled to a recovery? This is the true point in the case.
    As to the suggestion that the case has been prematurely brought up, the law that provides that “ no writ of error or supersedeas shall be granted in any case, until final judgment in the circuit court,” is not disregarded in bringing this writ, for the record shows as final a judgment as can be rendered, and it is to reverse the judgment in this case that this writ is brought.
   Mr. Justice Clayton,

delivered the opinion of the court.

To the declaration in this cause, a demurrer was filed, setting forth ten causes. In our view, it will be unnecessary to consider more than one of these causes, and in the statement of the case we shall confine ourselves to a notice of such parts of the record, as will make this point intelligible.

D. and J. B. Walker, in May 1839, recovered a judgment in -the circuit court of Lauderdale county, against Horatio B. Warburton, for the sum of $1150. In 1842 they were declared bankrupts, in the state of Alabama, and all their effects were transferred to Ptolemy Harris, the assignee in bankruptcy. Harris assigned this judgment to James W. Long, who assigned it to the plaintiff in error, Wilson.

The defendants, under other, judgments against Warburton, caused two negro men to be sold, purchased them at execution sale, and took them to the county of Choctaw. These executions are alleged in the declaration to be fraudulent. The plaintiff caused an execution to be issued on the judgment, in favor of Walker, and placed in the hands of the sheriff of Choctaw county, to be levied on the two negroes above-mentioned ; but the defendant, it is alleged, forcibly and fraudulently prevented the sheriff from making the levy, and the plaintiff thereby from making his money. This suit is brought to recover damages from the defendants for their conduct.

The first cause of demurrer, questions the right of the plaintiff to maintain this action in his own name. A legal right in the plaintiff to the matter in dispute, is the necessary foundation of every action at law. The judgment was in the name of the Messrs. Walker, and the legal right to enforce it, prior to their bankruptcy, resided in them alone. At common law, no chose in action could be assigned, so as to give to the assignee a right to sue in his own name. We have a statute which authorizes the assignees of certain instruments to maintain suits in their own names, but judgments are not comprehended in the statute. In the construction of similar statutes in other states, it has been repeatedly holden, that the assignee of any instrument, not embraced in the statute, stood as at common law, and could not maintain any action upon it in his own name. Craig v. Craig, 1 Call, 483. Lewis v. Harwood, 6 Cr. 82. This construction is clearly correct.

The act of congress, usually styled the bankrupt act, in its third section, provides that all the bankrupt’s property of every kind, shall pass to the assignee and be vested in him, and that all suits in law or in equity then pending, in which the bankrupt is a party, may be prosecuted or defended by such assignee to their final conclusion. Whether this is to be done by the assignee in his own name, or that of the bankrupt, is not stated. But whether it maybe dpne in the one name or the other, it certainly gives to the assignee no power to transfer to another person a right to any chose in action, which such third person can prosecute in his own name. Such transfer by the assignee must be governed by the same rules which regulate transfers by other persons. The right then, in this case, which passed by the assignment, could only be enforced in the name of the bankrupt, or at farthest, in the name of his assignee, for the use of the person really interested. It is manifest that if a scire facias, from any cause, had become necessary in the case, it must have been in the name of the Walkers, or if the act of congress changes that, in the name of their assignee in bankruptcy. The execution must have been in the same name. If the levy of such execution were obstructed, the right to recover damages for such obstruction, if it existed in any one, must have resided in them, or in their, assignee in bankruptcy alone.

The plaintiff in this instance, having failed to show a legal right in himself, has shown that the action cannot be sustained in his name.

Without intending to express any binding opinion on the subject, we will venture to suggest for the consideration of counsel, whether any cause of action is disclosed by the declaration against the present defendants.

For the reason above pointed out, the judgment of the court below will be affirmed.

The plaintiff in error filed the following petition for a rehearing :

To the Honorable the High Court of Errors and Appeals.

In the case of H. R. Wilson v. Ransom McElroy, from Lau-derdale, in which there has been an opinion delivered and judgment of affirmance rendered, the counsel for the plaintiff in error respectfully requests a reconsideration of the cause.

The case came up for revision on the judgment below sustaining a demurrer to the declaration; and the judgment has been affirmed upon the opinion of this court, that the declaration was invalid as not showing a legal right in Wilson, the plaintiff below.

The cáse disclosed in the declaration is in substance, that on May 22, 1839, D. Walker and J. B. Walker, obtained judgment in Lauderdale circuit court, against H. B. Warburton, for $1150 damages, beside costs; which remaining wholly unpaid, was, on August 19th, 1842, included by D. & J. B. Walker, in their assignment in bankruptcy to P. T. Harris, the assignee, pursuant to the act of congress; that Harris', pursuant to the authority in him as assignee, assigned the judgment to J. W. Long, on the 20th of April, 1843, who, on that day, made assignment thereof to the plaintiff, “by virtue whereof the plaintiff became vested with all the legal and equitable advantages and benefits to be derived from said judgment;” that Warburton having sufficient estate to satisfy the judgment, to wit, two slaves, the defendants, McElroy, Edwards, and Barrow, on the 18th and 30th December, 1842, without any lawful authority, but fraudulently combining, &c., caused executions on other judgments against Warburton to be issued, they well knowing the said other judgments to have been fully satisfied and discharged, caused them to be levied on said two slaves and sold, and they became the purchasers, on an agreement between them to share the product of the fraud: that the plaintiff on June 19, 1843, caused execution on the assigned judgment to be issued and delivered to the sheriff of Choctaw county, with instructions to levy it on the said two slaves, which the defendants kept secreted in that county, but they would not permit the sheriff to levy, but with force and violence resisted, and thereby prevented the collection of the amount of said judgment, all of which were to the plaintiff’s damage on the special case.

The first question considered by the court, is, whether the plaintiff presented himself with such legal interest in the judgment, whose execution was obstructed, as entitled him to sue at law? It is assumed that whoever sues at law must have the legal right. The right of the Messrs. Walkers, as judgment creditors, so far as enforceable at law, was a legal right; but they, under certain circumstances, might have made the judgment the subject of equitable interposition. Under the act of bankruptcy, the judgment, as an adjudicated legal right, with all the equities that had or might attach to it, was passed to Harris, the assignee in bankruptcy. It will surely occur that all the right of the judgment creditors was passed to their as-signee, and nothing thereupon remained in them. Harris then was invested of all the right in all its ramifications. It is submitted that under the bankruptcy act, the assignee was allowed and required to make sale of the effects, choses in action, &c. surrendered, and to bring the products of the sales into a fund for distribution among the creditors of the bankrupts. The declaration avers, that pursuant to that act, Harris made assignment of the judgment to Long. Now, if the act allowed the assignee to make such sale, an assignment was the necessary consequence ; and it surely cannot be controverted that all the rights in and attached to the judgment were passed to Long, so as to all practical purposes, to put him in the room and stead of the bankrupts. No doubt then could be entertained as to the efficacy and scope of Long’s assignment of the judgment to the plaintiff Wilson. In this manner, Wilson became entitled to the exclusive control of the judgment and of the execution thereon. All the rights of the bankrupts, the judgment plaintiffs, had thus become passed to Wilson. No figment or fragment remained unpassed. What then was the nature of Wilson’s right? Had he not the power to order execution to issue, to direct its levy, to indemnify the officer, to bid at the sale, to receipt for the product ! If he had, was this a legal, or an equitable right ! If enforceable according to the course of the common law, was it not a legal right! Wilson was not seeking to recover by action at law, a debt due from Warbur-.ton ; nor was he seeking to recover unliquidated damages from him. The statutes concerning the assignment or indorsement of negotiable or unnegotiable paper were not concerned.- All the right, whether legal or equitable, in the judgment had been passed to him. By the third section of the bankrupt law, the assignee in bankruptcy was fully clothed with the power of sale; and he, exerting that right, had passed all the rights in and to the judgment of the bankrupt; and it is a clear proposition that any claim properly founded on the judgment, and cognizable at law, was a legal right, and any claim justly arising from the judgment, and properly prosecuted in chancery, was an equitable right.

Thus then the character of the right involved, is not determinable upon the assignments merely, for they passed the whole right of every description. We are thence led to examine the wrong alleged. The first phase of that wrong is the nefarious combination to foist up satisfied judgments ; to do this without authority, and to cause fraudulent executions on them to be levied on slaves bound by the transferred judgment, and purchasing them at the sale, so as to obtain, on an abuse of the course of justice, possession of the slaves; and then the concealment of the slaves and the resistance of the officers, whereby Wilson was prevented satisfaction of the execution of his judgment. The gist of this is, a fraudulent conspiracy to prevent satisfaction of a judgment, of general lien on property, by practices susceptible of proof, and which resulted in preventing satisfaction. The force against the officer was of consequential injury to the plaintiff. The only question, surely, is whether an injury was inflicted! If an injury was committed, it is plain it affected the plaintiff only. Under the constitution, there is to be no injury without a remedy. What was the remedy, and in what forum! The action was to recover damages, in an action on the special case, for the conspiracy, whose acts resulted in the injury. The damages sought were unliquidated; and consequently, as the ascertainment of them was addressed to a jury, equity could not interpose. The remedy then was open and clear at law. Before a jury, on proof of all the facts alleged, without any meritorious defence, the jury and court would have had full ground on which to have assessed the damages. The declaration does not seek to reverse any trial of the right to any specific property.

J. G. Ott,

Steele,

A. Hutchinson. ■

The court, however, adhered to its opinion, and overruled the application. -  