Hetherington v. Hayden

Wright, J.

dissenting. I can not concur in the foregoing opinion. Without elaboration, my position is this: At common law it must be admitted that these bonds, however held, could not be levied upon by execution. The Code in sections 1893-4, in connection with sections 1859-60, introduce a new rule, in providing that bank bills and other things in action, as also stock and interest in any company, may bo attached or levied upon and sold. Rut this rule is not that a liability may be sold, but the permanent right in or to the thing. To my mind it is a misuse of terms to speak of a person or corporation having a right of action, or a thing in action against himself or itself, The law admits that the *343note of A owing to B may be sold to pay B’s debt, or that the stock or interest of B in a company may be sold to satisfy his indebtedness, and not that his note or that stock of a company may be levied upon and sold to meet, in one case the debt of his creditor, and in the other that of the company. See Courtney v. Carr, 6 Iowa 288. And the rule must be the same whether it is the bond of the Railroad Company or of an individual that is the subject of the levy. These bonds are not bank bills. Now, as to the company, are they in any proper sense dioses or things in action ? If the latter, it would be rather difficult to perceive how the company would proceed by writ at law to reduce to possession the personal right in said bonds. Who would the the company sue, and against whom recover judgment ?