
    JANUARY TERM, 1844.
    Aaron Dougherty v. Compton & Oldham, et al.
    A third party, whose interest is not prejudiced even if there be error in the record, is not entitled to be a plaintiff in error in a court of law.
    Error from the Circuit Court of Claiborne county.
    At November term, A. D. 1837, of the Claiborne Circuit Court, a judgment was rendered in favor of Aaron Dougherty against Compton & Oldham, and A. Tunstall, for $2,359.48.
    Various executions issued upon this judgment, and on the 19th of February, 1841, a pluries fi. fa. was levied by the sheriff of Claiborne, on certain lots in the town of Grand Gulf, as the property of Tunstall. An appraisement was claimed, and the lots not bringing two thirds of their appraised value, no sale took place.
    On the 22d of June, 1842, a venditioni exponas was issued, on which the sheriff returned, that he had sold the property for $1800, of which sum $77.50 was applied by order of the Court to another execution, and the remainder to the venditioni exponas.
    
    At the November term, 1842, of the Claiborne Circuit Court, William Laughlin, the defendant in error, moved the Court for an order on the sheriff of said county, requiring him to pay over to him, the said Laughlin, as the assignee of said judgment, the money made thereon, as aforesaid. This motion was opposed by the Bank of Port Gibson.
    In support of this motion, Laughlin, the defendant in error, read in evidence the following receipt.
    “ Received of John M. Carpenter, a note drawn by Compton & Oldham, and indorsed by A. Tunstall & Co., due and protested 1 — 4 of September, 1837, for $2,300, protest $3 — • $2,303 for collection. Grand Gulf, November 30, 1837. J. B. Thrasher, Attorney.”
    He also read in evidence the following letter from J. B. Thrasher.
    “ Port Gibson, 22d of April, 1842. _ William Laughlin, Esq. ‘‘Dear Sir ; — Your favor of the 9th inst. is to hand, and contents noted. I hold no claim, of which there is any prospect of collection, but the two notes in suit, in the name of Aarou Dough-erty, one for $2300, and the other for $640.82, levied on property at the Grand Gulf, and appraised. The appraisement will expire at Court, fourth Monday in May next. I received those claims from Jno. M. Carpenter, and do not know who they belong to, whether H. Carpenter & Co., or not; but if you hold my receipt, I suppose it was given up to you as the assets of H. Carpenter & Co. by Jno. M. Carpenter, and my receipt will draw the money, when collected, but which cannot take place until after Court; then I expect the money will be made, &c. Respectfully, J. B. Thrasher.”
    The Bank of Port Gibson then proved, that J. M. Carpenter placed the claim, on which the money was collected,- in the hands of J. B. Thrasher, attorney at law, for collection ; and that said Carpenter had, before the money was collected, notified Thrasher to pay said money to the Bank of Port Gibson ; and also, that said note was a part of the assets of the late firm of Harper, Carpenter & Co., of which firm said Carpenter is the survivor, and never did constitute a part of the assets of H. Carpenter & Co.; and that John M. Carpenter stated that he had passed the receipt to Laugh-lin by mistake.
    Whereupon, the Court adjudged that five per cent, on the amount collected be paid to J. B. Thrasher, for his commissions in the case, fifty dollars to J. A. Maxwell, and fifty dollars to E. A. McLean, as their fees, &c. ; and that the balance be paid to said Laughlin, as the receiver of the assets of H. Carpenter & Co.
    To this decision of the Court, the Bank of Port Gibson excepted, and has removed the case to this Court by a writ of error.
    Thrasher, for plaintiff in error.
    Pour errors have been assigned to reverse the judgment of the Claiborne Circuit Court; either of which is deemed sufficient for that purpose. There was not the slightest evidence tending to show a right on the part of, Laughlin to the money in controversy; neither the letter, nor the receipt, which were read to the Court, amounted to even prima facie evidence of any fact in controversy. Much less did they, or either of them, establish a right in Laughlin. The receipt was given to John M. Carpenter, and had never been indorsed or transferred to Laughlin, by assignment or otherwise ; How. & Hutch. 373 ; and was not subject to transfer by mere delivery, as in case of negotiable paper at Common Law. Chitty on Bills, 181, 218, 220. But even if possession of the attorney’s receipt by Laughlin, amounted to prima facie evidence of a right to receive the money, yet it was subject to explanation by parol, and the testimony contained in the record established three points destructive of such right.
    First, That the right of Laughim to receive the money, was based wholly upon the ground, that he had been appointed by the Court of Chancery a receiver of the effects of H. Carpenter & Co., in which capacity he claimed the money. Secondly, That the money in controversy, or note upon which the same had been collected, never did belong' to H. Carpenter & Co., and constituted no part of the effects of that firm ; rand, Thirdly, That the receipt came into the hands of Laughlin by mistake.
    It has been repeatedly held, that a receipt is an exception to the general rule, that a writing cannot be explained or contradicted by parol. 1 Johns. Cas. 145 ; 2 Johns. Rep. 398 ; 3 Johns. Rep. 319 ; 8 Johns. Rep. 389 ; 9 Johns. Rep. 310 ; Greenleaf on Evidence, 353.
    The1 ignorant and unwary, if receipts were to be deemed conclusive, and not open to explanation, would be defrauded and swindled out of their dearest rights, says Judge Spencer, in the case of Tobey v. Barker, 5 Johns. Rep. 72. Hence the explanation offered by the testimony, to wit; that the claim in controversy never did belong to H. Carpenter & Co., and Laughlin came into possession of the receipt of the attorney by mistake.
    Laughlin being thus in possession, of the attorney’s receipt by mistake, as receiver of H. Carpenter & Co., addressed a letter to the attorney respecting the collection of the claim, and received for answer the letter set out in the bill of exceptions; which letter, so far as it tends to explain the transaction, proves the right to be in John M. Carpenter. This letter, however, was inadmissible as evidence in every point of view. The controversy was between Dougherty, use of the Bank of Port Gibson, and Laughlin. The letter was written by a third person, or stranger to the suit, who was in Court at the time, and could have been examined, but was not; the inadmissibility of such testimony, therefore, cannot admit of a single doubt.
    At the time suit was instituted, the legal title was in Aaron Dougherty, abona fide owner, and for aught that appears, is still in Dougherty ; no transfer from Dougherty has ever taken place; Dougherty, or his attorney, therefore, were the only persons authorized by law to receive the money. The claim was originally owned by John M. Carpenter, and by him put into the hands of the .attorney for suit; but before suit was brought, the legal title passed to Aaron Dougherty, in whose name the suit was instituted and money collected.
    If there was any evidence tending to show that Dougherty had parted with the judgment, it was the implied evidence that John M. Carpenter bad, by some arrangement, again become the owner of the claim, and entitled to receive the money. But how Laughlin could be entitled to the money as receiver of H. Carpenter & Co., to whom the claim never did belong, and to whom it had never been transferred, is inexplicable.
    
      John B. Coleman, for defendants in error.
    The only parties to this controversy, the only parties legally before this Court, are the Bank of Port Gibson on the one hand, and William Laughlin on the other. Aaron Dougherty, the nominal plaintiff in the judgment, if there really is such a person in existence, is shown by the whole record and proceedings to have no interest in it. The note, on which the judgment was rendered, was placed in Thrasher’s, the attorney’s hands for collection, by John M. Carpenter. Thrasher receipted for it to Carpenter, and in his letter to Laughlin, he acknowledges having received the claim from Carpenter, and states that his receipt will draw the money when collected. Neither in the receipt nor in the letter, is Aaron Dougherty once alluded to as being in anywise interested in the matter. John M." Carpenter alone is spoken of, alone is referred to. Upon the trial of the motion, Dougherty never makes his appearance, either in person or by attorney, although Thrasher, the attorney by whom the judgment was obtained in Dougherty’s name, was present, resisting the motion on the part of the Bank of Port Gibson. The motion was opposed by the Bank of Port Gibson alone, claiming too, not under Dougherty, but under Carpenter, and thus recognizing Carpenter’s right to the control and disposition of the judgment. The Bank of Port Gibson alone excepted to the decision of the Court, and the using of the name of this man of straw, Aaron Dougherty, was altogether an afterthought, not occurring to the minds of the counsel of the bank until the writ of error was to be sued out, and the bond executed. Aaron Dougherty’s name was used when suit was instituted, for some purpose best known to the parties ; but the note itself was Carpenter’s property, as the survivor of H. Carpenter & Co. He held Thrasher’s receipt for it, and to him or his as-signee alone belongs the control of the judgment obtained in it. In considering this case, then, we dismiss Mr. Dougherty altogether. It is assigned for error, that the Court below admitted the letter and receipt of J. B. Thrasher as evidence of title in William Laughlin.
    In what, we would ask, did this error consist? Laughlin had moved the Court to order the sheriff to pay over to him the money made upon the judgment, on the ground that he was the assignee of the judgment. The burthen of showing his right to control the proceeds was thrown upon him. What better evidence of title than the attorney’s receipt for the note on. which the judgment was rendered, could he have offered? That an attorney’s receipt is transferable, will not, we presume, be contended; and that such transfer passes to the assignee all the assignees interest in the subject-matter of the receipt, is, we suppose, equally clear. That this receipt was transferred to Laughlin, without any fraud or unfairness on his part, was not disputed or denied. In fact, it was proven by the bank herself, had the evidence offered by her been competent, in her effort to show that it had been transferred by Carpenter to Laughlin, through mistake. The receipt then, was not only admissible in evidence, but it was in reality the best and only evidence of title which Laughlin could produce.
    The letter of Thrashpr to Laughlin was equally competent for the purpose for which it was introduced, to wit; to show the time at which he had been notified by Laughlin of the transfer of the receipt, as well as his acknowledgment, as the attorney in the case, that the holder of his receipt would be entitled to the money when collected.
    It, is also assigned for error, that the Court ordered that the money of Dougherty should be paid to Laughlin, who neither represented Dougherty, nor held a transfer from him.
    We think it must be apparent to the Court, that Dougherty was of rather too ideal and intangible a character to be easily susceptible of being represented, and also that he had no interest in this judgment to transfer. It strikes us too, that the objection that Laughlin “neither represented Dougherty, nor held a transfer from him,” comes with but a bad grace from the Bank of Port Gibson. Does she claim this momey under a transfer from Dougherty? Has she attempte'd to connect herself in any way with Dougherty, except by using his name in her petition for a writ of error? No. She rests her claim solely upon some instructions alleged to have been given by Carpenter to Thrasher, at what time no one knows, to pay this money to the bank. If Laughlin, in consequence of claiming under Carpenter, has no title to the money, the Bank of Port Gibson assuredly stands in no better attitude, and should, upon every principle of equity, be dismissed from this Court pro falso clamor o.
    
    It is also assigned for error, that the Court below did not order and adjudge said money, either to Dougherty, or to the Bank of Port Gibson.
    We have nothing more to say in relation to Dougherty ; he was not before the Court below, nor do we conceive him legally before this Court; but we will examine the showing which the bank has made, in support of her claim to this money.
    Her title, such as it is, she adduces from Carpenter. Prom the bill of exceptions, it appears that she proved that Carpenter placed the note, which is the foundation of the judgment, in Thrasher’s hands for collection ; and that before the money was collected, Carpenter notified Thrasher to jpay this money to the Bank of Port Gibson.
    When did Carpenter thus notify Thrasher? Before the transfer by Carpenter to Laughlin? Unquestionably not. This notice was never given by Carpenter to Thrasher, until after Thrasher had been notified by Laughlin of the transfer to him, and had thus become aware that Carpenter’s interest in the judgment was at an end. We will prove this by two circumstances apparent upon the record, and which, to our mind, clearly demonstrate the proposition.
    1. The first circumstance is the failure of the bank to prove the time at which the notification by Carpenter to Thrasher was given. The counsel of the bank was too astute, too keenly alive to the interests of his client, to have neglected to testify to the precise period of time at which this notification was made, if it had been made but an hour or even a minute prior to the receipt of notice from Laughlin of the transfer to him.
    2. The second circumstance, is Thrasher’s letter to Laughlin; this letter shows upon its face, that it was written in answer to one from Laughlin, notifying Thrasher of the transfer of this and other receipts, and asking information in reference to the claims embraced in them. In this letter, there is not only no hint or intimation of any notification to pay this money to the Bank of Port Gibson, or of any claim of the bank to it, but there is an express recognition of Laughlin’s title. “ My receipt,’’ says he, “ will draw the money, when collected.” That receipt was then in Laughlin’s possession, and Thrasher was apprized of it by Laughlin.
    In the very face, then, of the prior transfer and delivery by Carpenter-to Laughlin, of this receipt, and of Thrasher’s recognition of this transfer, it is difficult to conceive upon what principle of law the Bank of Port Gibson can lay claim to this money ; a claim resting upon a notice or notification to Thrasher, by one who was known at the time to have divested himself of every particle of interest in the judgment.
    From the bill of éxceptions, it also appears that Carpenter notified Thrasher that the note (on which the judgment was rendered) was part of the assets of the late firm of Harper, Carpenter & Co., of which firm Carpenter was the survivor, and never did constitute a part of the assets of H. Carpenter & Co.; and that Carpenter stated he had passed the receipt to Laughlin by mistake.
    In deciding upon the motion, the Court below very properly disregarded all the evidence introduced of the statements made by Carpenter, as to the respective rights of the several firms of Harper, Carpenter & Co., and H. Carpenter & Co. to the ownership of the receipt, as well as to the pretended mistake in the transfer to Laughlin. This evidence was altogether hearsay, and clearly incompetent. If the bank desired to bring”these’facts or statements before the Court, Carpenter himself should have been produced to testify to them. Had he been called to the stand, and had he testified in strict conformity with the statements said to have been made by him, it might be a question of some doubt how far his simple oath, that he had transferred the receipt to Laughlin by mistake, would be sufficient, unaccompanied by other evidence, to divest Laughlin’s title to it. He was not examined, however, and consequently the question as to what would have been the effect of his testimony, had he sworn in this or that particular way, is not of very vital importance.
    s.' We think the decision of the Court below was accordant with law and with the evidence. The proceeds of the judgment, after deducting Mr. Thrasher’s commissions, as attorney, and fifty dollars each to Messrs. McLean and Maxwell, for services rendered by them, “were ordered to be paid over to Laughlin, the assignee of the judgment, and the holder of the receipt. If he is not entitled to it, the Bank of Port Gibson certainly cannot be, and Carpenter is out of the question. We know of no one who could lay claim to it with any prospect of success, unless it be the escheater general, as the sole representative of Aaron Dougherty.
   Mr. Chief Justice Sharkey

delivered the opinion of the Court.

Dougherty recovered a judgment against Compton & Oldham, and the sheriff having collected the money under execution, William Laughlin came in and moved the Court that it should be paid him, on the ground that the judgment had been assigned to him. This motion the Bank of Port Gibson resisted, claiming also as as-signee ; so that the contest is really between the Bank of Port Gibson and Laughlin. Laughlin introduced, as evidence of his claim, the attorney’s receipt for the note, and also a letter from the attorney, saying that the receipt would entitle him to the money. The Bank of Port Gibson proved that Carpenter, the individual who placed the note in the hands of the attorney for collection, had directed him to pay it to the Bank of Port Gibson, and that he had transferred the receipt to Laughlin by mistake. The Court directed the money to be paid to Laughlin, to which the Bank of Port Gibson' excepted, and is now the plaintiff in error. Dougherty, the plaintiff, seems to have taken no part in the matter; Carpenter being looked upon as the ostensible person. We cannot say the Court committed an error. Neither party showed a very good title to the money. No assignment was shown except from vague circumstances. If the Court had decided against both, perhaps its decision would have been equally unexceptionable. Certainly the Bank of Port Gibson has' not shown such a right as to entitle it to be a plaintiff in error in a court of law. If there was error, it was not to its prejudice. The judgment must therefore be affirmed.  