
    George W. Goodrich v. George Mott.
    , , . A receipt, which contains no contract, although executed at the same time, and in reference to the same subject matter of the contract, need not he produced in evidence of the contract.
    And if such writing or receipt contain the contract, and is notin the power of the party, it need not bo produced.
    If an attorney receive a demand for collection, and the debtor leave demands with the same attorney for collection, the avails tobe applied on the first demand when realized, this creates no lien on the demands left by the second creditor, in favor of the first creditor or of the attorney, for the security of the first debt.
    In such case, the attorney, in making the collection for the second creditor, acts solely as his attorney, and such creditor has the right to control such demands, without consulting the attorney.
    In order to create a lien for the security of the first debt, a contract to that effect is necessary, which should be distinctly notified to the officers and debtors, in the secondary collections, o'r they will be allowed to take the directions, ahd make payment to the nominal creditor in the execution.'
    How the officer may make the execution his own, by acts, showing his intention, underslandingly made, ti> adopt them as such.
    
      This was an actio'n of 'trespass cm the 'case against the defendant for neglect'of duty, as'constable'of Alburgh, in'not collecting an execution in plaintiff’s favor, against Emerson, Hazen, and Reynolds, issued on 'a -judgment rendered by the county court', Tor this county', at 'thei'r April Term, 1834.
    It appeared in evidence', on trial of this case in 'the county court, 'beforethe-jury, that Giles Harrington, an attorney, had in his hands', for collection', a demand in favor of one Root, of Troy, N. Y.', '¿gainst this plaintiff, signed by one Ladue, as surety. Goodrich 'arid Lad'ue, in ''order to rafee the m'o’ney 'for Root, put the note iri plaintiff’s iaVor against Emerson, Hazen, and Reynolds, into Harrington’s hands for collection, the avails, when realized', to be 'applied on Root’s demand. Harrington receipted the demand', in the usual mode, to Ladue. The above execution was obtained on 'this de'man'd, 'a'nd by Harrington put into defendant’s hands for collection, and by dfrectio'ri of plaintiffs attorney, levied upon certáin property of Hazen. Hazen and defendant both knew the purposes, for which Harrington was col. lecting the execution, and Harrington never consented that Goodrich or Ladue should control it, b'ut they did so control the collection of it, that hothi'ng was or could be collected. on it, to which defendant assetited, without consulting Harrington, and the demand of Root has remained 'all along uncollected.
    It appeared 'that defendant had Sometime procured an alias execution oh die -judgment, and ha'd made a commitment thereon, with á View to his ow'n indemnity,‘and that, during the pendency of tins suit, he had paid Harrington fifty dollars, in consequence of his own liability.
    In 'the'course of the'trial, 'the defendant 'called for tlie production of the receipt, executed by Har'ring'ton to Ladue, as being the primáry evidence of the contract, by which Harrington received', arid was collecting the demand. The court held the plaintiff not bo'Und to produce it, without notice.
    ilie court charged the jury, that, “ if the demand hád been “lodged with Hárring'to'n, as attorney of ‘Root, under'a contract “that he Should collect it', and apply the avails on'the demand “iri favor ol Root'against Goodrich arid Ladue, that'contract “created k lien 'tía the demand for the benefit of Root, which “ neither this defendant, nor the debtor in the execution, could “ defeat, provided they 'acted with notice of such 'contract. If, 
      “ therefore, they found the contract proved, and found the defen- “ dant had reasonable notice of it, they would consider any as- “ sent or agreement of the plaintiff and Ladue, to what the de- “ fendant did, of no avail in his defence,”
    To the forgoing decision and charge the defendant excepted,
    
      Smalley Adams, for defendant.
    
    
      G. Harrington, for plaintiff.
    
    I. The defendant having given plaintiff no notice to producé the receipt, the latter was not bound to produce it.
    2'. If the demand was legally in Harrington’s hands-, for thé benefit of Root, and notice of that fact carried home to the officer and the plaintiff in the execution, the interference of Goodi rich and Ladue, ought not to have been regarded by the defendant. Lampson v. Fletcher, 1 Vt. Rep. 168. 2 Aikens’ Rep-. 373, . Strong v. Strong, and the cases there cited,
   The opinion of the court was delivered by

Redfield, J.

The decision of the court, in relation to thé receipt of Harrington, was undoubtedly correct. It does not ap^ pear that this receipt contained' any contract or expressed the terms, upon which Harrington was to collect the demand. If i't was a receipt in the usual form, it would not. Had it contained the contract, by which Harrington claimed a lien upon the demand, distinct from the interest of Goodrich and Ladue; it not being in the power of the real plaintiff, Root, but of the defendant, the former could not be required to produce it. For thé rule, requiring the plaintiff to produce the best evidence his casé admits of, is always to be qualified by the consideration that i’t must be in his power. And if Ladue is to be considered as thé real party defendant in this suit, he could not be compelled to testify or to produce this paper, on a subpcena duces tecum., and therefore the paper was not in the power of -Root, who is thé real plaintiff.

Upon the other part of the case, we think the testimony did not tend to show any specific assignment of the demand to Root; either by way of sale or collateral security. It would seem ra'^ ther like an assignment by Goodrich to Ladue, who was his surety, and that, in the collection, Harrington acted as the attorney of Ladue ; and that Ladue really had the exclusive control of the demand. This is in substance the common case of- an attorney, staying one collection at his own risk, for the purpose of being employed in other, collections, the avails, of which it is understood shall.go to liquidate the first demand. In such cases, it is always considered, that the attorney in the second instance acts as the attorney of the creditor in the recovery of the demands, and that such creditor has the control of the collections, until the money is realized, when the attorney has the right .to apply it on the first demand, but that neither he nor the first creditor has any interest in the demands. Such, we consider, the testimony tended to show this case, and the charge, in this particular, was erroneous.

In order to create a lien in fa^or of Root, there should have been a distinct contract to that effect, and this should have been unequivocally notified to defendant, or he would be fully warranted in taking the direction of the judgment creditor and Ladue, as he did.

The acts of the defendant, in paying fifty dollars and in taking out an alias execution and making a commitment, might have been important in another view of the case, not presented by the counsel, i. e. in showing that defendant had adopted the execution and made it his own. Or they might have been done under a mistake of the facts, in relation to Harrington and Root’s interest in the demand, or for the purpose of buying his peace, and to induce a compromise, in which sense they would not be important. But as this point was not presented to the jury, it is only important with reference to a future trial.

The judgment of the county court is reversed and a new trial granted.  