
    Joseph Allen versus Daniel Holden.
    It is no sufficient defence to an action of debt on judgment, that an officer, who had failed to serve an execution issued thereon, and being sued for his neglect, had satisfied the judgment creditor; the action being prosecuted for the benefit of such officer.
    This was an action of debt, in which the plaintiff declares on a judgment of the Court of Common Pleas for the county of Suffolk, October term, 1807, for 277 dollars 70 cents, damage, and 9 dollars 77 cents, costs of suit. The defendant pleaded nil debet, with a reservation to give any special matter in evidence, and issue was joined by the plaintiff.
    At the trial of this issue, which was had at the last September term here, before Thatcher, J., the plaintiff produced a duly-attested copy of the judgment declared on.
    The defendant then read to the jury an attested copy of an execution, issued on the said judgment, dated November 27, 1807 and returnable on the first Tuesday of January, 1808, on which was the following return, viz.: “ Lincoln, ss. Jan. 5, 1808. By virtue of this execution, I have made diligent search, and cannot find any goods, nor moneys, nor estate, of the within-named Daniel
    
    
      Holden, within my precinct, nor wherewith to satisfy * this execution in any part; so I return it in no part satisfied. Attest. Hezekiah Wyman, Dep. Sheriff.”— The defendant read also an attested copy of a writ, sued on the 23d day of January, 1808, by the said Allen against Edmund Bridge, Esquire, sheriff of the county of Lincoln, returnable to the Court of Common Pleas in Suffolk county, April term, 1808, for the neglect of said Wyman (who was admitted to have been a deputy of the said Bridge, and to have had the said execution delivered to him in due season for service) in not executing said precept, collecting its contents, arresting the body of Holden, or returning said execution.
    It was admitted that, while the action against Bridge was pending, Wyman went to Boston, and made an adjustment with Allen, giving him his promissory note for the amount of his judgment against Holden, in consideration of which Allen discharged Bridge from the action he had brought against him, and assigned to Wyman all his, Allen’s, interest in the judgment now declared on, with authority to prosecute this action for the benefit, and at the expense, of Wyman.
    
    It was further in evidence that, while the said execution was in force, the defendant paid about a hundred dollars to one Cornelius Thompson, who then owed the defendant a sum of money, which, with the said hundred dollars, was equal to the amount then due on the execution; and that said Thompson thereupon agreed with the defendant to pay the execution; that Wyman called on Holden, and afterwards on Thompson, a short time before the return day of the execution, and the latter promised Wyman that he would discharge the execution, and requested him to let it expire in his hands, observing that he had some debts due him, out of which he expected to raise the money. It was understood by the witness, who testified to these latter' facts, that Wyman acquiesced in this proposal, and in consequence of this assurance of Thompson, neglected to serve the said execution on Holden.
    
    * A verdict was taken for the defendant by consent, subject to the opinion of the Court upon the above facts, contained in the judge’s report. If that opinion should be that the action was not maintainable, judgment was to be entered for the defendant on the verdict; otherwise the verdict was to be set aside, and a new trial granted.
    
      Mellen for the plaintiff.
    The action is brought for the benefit of Wyman, who has, by paying to Allen the amount of the judgment now sued, purchased the judgment; and this is an equitable interest, which courts of law will notice and protect.  Nor is Wyman’s claim affected by the facts appearing, and which show him a deputy sheriff, and to have been negligent in this business. It was to serve Holden, and from a confidence in his promises, and those of his friend Thompson, that Wyman has suffered, and has been obliged to seek an indemnity in this action. The debtor has never paid the money which he honestly owes, and which Wyman, having paid it for him, is, on every principle of justice and equity, entitled to recover.
    
      Wilde and Orr for the defendant.
    
      Wyman has no equitable claims in this case. By his negligence he became liable to indemnify Allen, and being so liable, and for that cause only, he paid the amount of the judgment, which thus became vacated. He had become himself the principal debtor to the judgment creditor. He could not thus place himself in a better situation than a surety. But a surety who has paid a bond, cannot in that character maintain an action on the bond, because it is by his payment discharged.  So payment of a judgment is a good bar to an action on the judgment.. Allen, having received satisfaction for his debt, had no further demand. He could not then assign to another what he did not himself possess. 
    
    The action standing continued nisi for advisement, the opinion of the Court was delivered at Boston, in July following, at an adjournment of the Suffolk March term, by
    
      
      
        1 D. & E. 619, Wynch vs. Keely. — 4 D.& E. 341, Master vs. Miller.
      
    
    
      
      
        Com. Dig. Chancery, 4, D. 6.
    
    
      
       1 H. Black. 543, Rex vs. Sheriff of Middlesex.
      
    
   Parker, J.

The question in this case is whether the facts reported by the judge who sat in the trial of the * action, were legal and sufficient evidence to maintain the issue on the part of the defendant, viz., that he owes nothing, or, in other words, whether they prove payment and satisfaction of the judgment. As it respects the defendant, he has paid nothing, and although the plaintiff has received a sum equal to the amount of his judgment, we do not see how the defendant can avail himself of 'that sum, to discharge himself from his liability on the judgment. The suit against the sheriff was not for the debt, but for damages for his non-performance of his duty; and only nominal damages might have been recovered, had it appeared that nothing had been lost by the negligence of the officer. Had that suit, therefore, proceeded to judgment and execution, it would have been no legal discharge of the original debtor from the judgment recovered against him.

It is true that the plaintiff may receive his debt twice, if he should recover against the sheriff the full amount of his judgment; but the debtor pays but once, so that he is not injured. Whether an officer, having been sued for his negligent doings on an execution, and having paid the amount of the debt in damages, may not maintain an equitable action against the creditor, provided he afterwards obtains his money from the debtor, is a question between the creditor and the officer, not necessary to be settled here.

No authority has been cited, and I believe none can be found, to show that the recovery of damages against a delinquent officer, by the creditor, operates a discharge of a judgment against the debtor. It is very clear, however, that an officer, under such circumstances, could not maintain an action against the debtor; for he would be obliged to found his claim upon his own failure of duty.

It is stated, in this case, that this suit is brought for the benefit of the officer, the debt having been assigned to him on his compromise of the suit brought against his principal by the creditor. Such an assignment may be perfectly equitable between the officer and the creditor. Many cases exist, where a sheriff or bis deputy becomes liable * through misfortune or accident, rather than from wilful neglect of duty; and in such

cases there seems to be no good reason why the creditor, who receives prompt satisfaction from the officer, should not aid him in obtaining an indemnity from the debtor, who can have no cause of complaint, since he can in no event be made to pay more than his debt. Indeed, the knowledge that the suit is brought for the purpose of restoring to the officer what he may have lost through carelessness, or (as it often happens) from his humanity towards the debtor, ought not to prejudice the suit. It may be the means of restoring all the parties to their rights without injustice to any one of them. Such an assignment being voluntary, there is no danger of protecting fraudulent or criminal officers from the just effects of their own misconduct.

There are some facts which render the case less favorable to the officer, if he were the party whose rights we could respect in law, than in other cases which may exist. It is stated that the debtor paid a hundred dollars to Thompson, who owed him enough, with that sum, to discharge this execution; and that the officer agreed to look to Thompson, and afterwards, at his request, omitted to serve the execution. This, however, cannot come into consideration, in the present case, between the judgment creditor and debtor. It is a matter to be settled between the officer and the debtor. 11 does not, however, appear that the officer had acquired any legal claim upon Thompson; or that he could ever, in any way, compel Thompson to pay. If he could, perhaps the payment to Thompson might be considered as made to the use of the officer, and so ought to be considered as going in satisfaction of the judgment. The defendant has, however, a just and legal claim against Thompson, which he might at any time have enforced; and he may still enforce it, if he has not lost his remedy by negligence.

The effect of this action, therefore, is to restore all things to their proper place. The debtor, who has paid nothing,' is compelled to satisfy a judgment long since * obtained against him; the officer will be restored to the money he has paid for the debtor; and the latter may recover of Thompson the money paid to him, and the debt he owes him. There is no legal defence to the action, and no equitable principles to excite a regr.et that the plaintiff’s present claim can be enforced. The verdict must therefore be set aside, and a new trial be granted, 
      
      
         [In Sherman vs. Boyce, (15 Johns. Rep. 443,) it was held that if an officer, having an execution, pays the amount to the plaintiff, with his own money, or with money-raised by the defendant and the officer on their joint credit, the judgment is satisfied, and the officer cannot afterwards enforce the execution against the defendant for his own indemnity, notwithstanding an agreement between them that the execution should continue in full force in the hands of the officer, — Ed.]
     