The opinion of the Court was drawn up by
— The cases of Allen v. Holden, 9 Mass. R. 133; and Dunn v. Snell & al. 15 ib. 481, are in principle very distinguishable from this case. In those cases the officers, having executions, had paid the creditors, upon having assignments of the debts made by them, for their benefit; the debtors never having paid the same to the officers. Here the officer, who held the execution, paid the debt to the creditor, without intimating, so far as appears, that he had not collected the same of the debtor. In such case the debt, so far as the plaintiff was concerned, was extinguished; and he could not, surely, for his own benefit, have sued and have recovered upon the judgment, by virtue of which the execution had issued. And the officer could have no right to do so in the name of the creditor. He could in no sense be considered as an assignee, either at law or in equity. The case of Stevens v. Morse, 7 Greenl. 36, and cases there cited, are directly opposed to the positions contended for by the counsel for the plaintiff.
Plaintiff nonsuit.