The name of Longenecker was used as the legal plaintiff, under the supposition that he had the legal title; but in this species of action, which, in substance, is said to be a bill in equity, there is no distinction between legal and equitable title, he being the legal party who is entitled to the money. But Longenecker was not entitled beneficially, or even as a trustee for the creditors ; for the law is not so unreasonable as to attribute to him the ownership of that of which it has itself divested him, and appropriated to the extinguishment of his debts. Who, then, was entitled to the money here ? The sheriff’s is the hand to pay out, and a mispayment may undoubtedly be recovered back by him, in an action founded on the special property which he has in the money as the bailee of the law; so that the action here might have been brought *303with perfect safety in his name. It might also, perhaps, have been brought in the name of Bossier, the creditor ultimately entitled; for though there is no privity between him and the defendant, the money, where it has been received mala fide, may be pursued specifically on the owner’s right of property. Here there would seem to be enough in the case to authorize a jury to find, that the money was received mala fide, or, perhaps, a legal presumption to that effect would necessarily arise from the facts. But all difficulty would have been removed by proceeding in the name of the sheriff.
Judgment affirmed.