Rogers v. Mickley ( 1876 )

Turney, J.,

delivered tbe opinion of tbe court.

Tbe declaration is for wrongfully suing out an attachment against tbe estate of tbe plaintiff, whereby tbe plaintiff’s property was wrongfully levied upon, seized and sold, etc.

Tbe proof is, that before the levy, the plaintiff bad sold a part of tbe property to Hobbs, but bow much or what part, does not appear; that after the levy tbe contract of sale was rescinded.

Tbe law is, tbe action for a tort must, in general, be brought in tbe name of tbe person whose legal, right has-been affected, and who was legally interested in tbe property at tbe time tbe injury thereto was committed, for be is impliedly tbe party injured by tbe tort, and whoever has-sustained tbe loss is tbe proper person to- call for compensation for tbe wrong. 1 Chitty’s Pleading (7 American,, ed.), 68.

To entitle himself to a recovery for such of tbe property as was not embraced in tbe sale to Hobbs, tbe plaintiff should, by proof, have separated it and ascertaind its, value.

Reverse tbe judgment.