Page:North Dakota Reports (vol. 3).pdf/326

 right to use the name of the nominal party in a suit upon it.” In Newbert v. Cunningham, 50 Me. 231, the defendant in a replevin suit recovered judgment for return of the property. The execution upon this judgment being returned unsatisfied, the defendant who had recovered the judgment brought suit upon the replevin bond. -He obtained a judgment upon this bond, but, the sureties being insolvent, he sued the sheriff for taking an insufficient bond. This last action was settled by the plaintiff therein without the consent of his attorney in the original replevin suit, in which the plaintiff recovered judgment. The attorney, claiming a lien for his services upon the original judgment in the replevin action, insisted that he had a lien to the same extent upon the cause of action against the sheriff for taking an insufficient bond, and that, therefore, the action could not be settled without his consent, to the prejudice of such lien. The court sustained him in this contention, saying: “The attorney, being regarded as an equitable assignee of the judgment, has a right to the same remedial processes as his client to obtain satisfaction to the extent of his lien. The replevin bond is a substitute for the property replevied, and a security for the damages and costs arising in the prosecution of the suit. The right to enforce it is one of the fruits of the judgment. It accrues after its rendition. It is by its enforcement that the judgment is made available. The attorney, as incidental to the jugmentjudgment [sic], has a right to enforce it, which his client cannot defeat. The bond is made running to the defendant in replevin. The attempt to collect it was ineffectual. The sureties were insolvent. But this will not discharge the sheriff. Until the attempt was made, and failed, he might have insisted it would have been successful. It being the duty of the sheriff to take a replevin bond with sufficient sureties, he is liable in case of their insufficiency. But to whom? Manifestly, to the person to whose benefit the bond, if good, would accrue. The damages awarded for taking an insufficient bond are the compensation for the loss arising therefrom. The person holding the bond is the one who suffers from the insolvency of the sureties.