The opinion of the" court was delivered by
Bennett, J.It is too well settled to admit of debate, that, as a general rule, an aetion for money had and received will lie to recover back money v collected under a judgment subsequently reversed ; but the question is, will it lie under the particular circumstances of this case? The judgment against Catlin was obtained in an action upon a jail bond, executed to Allen as sheriff of the county of Chittenden, upon one Ogden’s being committed to jail upon an execution in favor of Orvis & Cole. Catlin signed the bond as surety. It appears that one Blood elaimed to be the owner and equitable assignee of the bond, and that he procured the suit to be brought upon it, in the name of the -sheriff, but for his own benefit. The sheriff had not assigned the bond in form, but had delivered it to Blood for the purpose of collection.
The attorneys, who prosecuted the bond, were employed by Blood, and accounted to him for the money collected. No part of the money was ever paid to Allen, and indeed he had no right to the receipt of it. Catlin was fully advised, while the suit was pending upon the bond, by the pleadings in the case, that Blood claimed that he had purchased -of Orvis & Cole the judgment and the bond, and of coursé understood that he claimed to be -prosecuting it for his benefit. As-to the validity of this purchase, as between Orvis & Cole and Blood, it matters not, so far as this suit is concerned. Notwithstanding these facts, it is claimed that the defendant is liable for money had and received.
It must readily be admitted that the action would lie against Blood, or against his attorneys, while they retained the money in their hands as belonging to Blood. This is in accordance with *164well settled principles; and the case of Maghee v. Kellogg, 24 Wend. 32, is a full authority to that effect. Upon the reversal of the judgment, Blood could have no equity in retaining the money against Catlin. Upon such reversal, Allen’s right, had he been the real plaintiff, must have been at an end; and he being but nominal party, the same result must follow as to him, who has the real interest.
But it may be said, this is not decisive, and that Catlin should have his election to sue either Blood or Allen. It is quite clear that Allen has not in fact received any of the money collected under the judgment, and had no right to receive any. The bond was given to him as sheriff of the county, and it was his right to assign it to the creditor, and thereby shield himself against an action for an escape. If called upon by the assignee of the judgment creditor, it would be equally the duty of the sheriff to assign the bond ; but in the present case Blood did not call for an assignment of the bond, but was satisfied with its delivery to him by the sheriff, with an understanding that he might prosecute it, in the name of the sheriff, for his own benefit. The sheriff received no consideration from Blood for the delivery of the bond to him, and he was in no‘way answerable over to the judgment creditors, or to Blood, in case of a failure to recover upon the bond. How then can it be said that the sheriff had an interest in that suit, or in its result, beyond his liability for costs ? His name was used, in the strictest sense, in trust, and he was a mere man of straw. This was so understood by Cat-lin, — so regarded by both parties. We think it is clear that Allen has not, in fact, received any money to the use of Catlin, and, upon principle, should not be held liable.
It is, however, alleged in argument, that Allen, being plaintiff of record, is estopped from denying that the money was collected to his use. We think not. We have fully adopted the doctrine, that, even at law, we will look beyond the record and see who is the real plaintiff, and will recognise and protect the rights of the assignee, as fully as if he was the plaintiff upon the record. There is, then, no estoppel in such case, operating in favor of the defendant, against the assignee ; and when his interests require it, we regard him as the real party. It is true, that the party upon the record, though but nominal, is liable for costs; and proceedings upon the *165judgment must be in his name. The case of Moss v. Fuller et al., 12 Vt. 265, proceeds upon the ground, that, when there is an attempt to fix a liability upon a party upon the record in a new and independent proceeding, he may be permitted to show the true relation, in which he stands to the suit. This is in accordance with well settled principles.
We think that Messrs Maeck and Smalley were rightfully admitted as witnesses in the county court. There is nothing in the case which would show them liable over to Allen, in case the plaintiff should have recovered in this suit. It appears, from the plaintiff’s own showing, that the suit on the bond was prosecuted with the full knowledge of Allen, and that he in no way expressed his dissent to the proceeding. He of course must have assented to then-having acted as attorneys, under proper authority; and, as it respects the competency of these witnesses, I do not conceive that it is material, whether this authority was derived immediately from Allen, or from Blood, who claimed to be, and acted as, owner of the demand.
We are all agreed in affirming the judgment of the county court.