Bank of Rutland vs. Reuben R. Thrall, 6 Vt. 237

After argument, the opinion of the court was delivered by Phelps, J. — It is very clear, that in order to sustain this defence, it becomes necessary to make out, either that the plaintiffs have, received actual satisfaction of their claim, or that they have proceeded so far, or in such a manner, in the process of collection against Hooker, the principal debtor, as to be equitably estopped from pursuing the defendant in this action. The case is not very explicit as to the ultimate disposition of the money levied by the officer, Page.

Whether the whole amount passed into the hands of the defendant, as the attorney of the several creditors, or only the sum of about six hundred dollars, does not distinctly appear. Whether we are to consider the two receipts, specified in the case, as a part of the sum testified to by Page, or as additional, is left to conjecture. Upon the last supposition, it would appear that nearly the whole of the amount levied, (perhaps all, if we allow for the officer’s charges,) passed into the hands of the defendant.

Now although payment to an attorney is, in general, payment in a legal sense to his employer, yet the effect, under the circumstances of the case, is very different. It appears that the defendant was entrusted, or at least permitted, by the plaintiffs to prosecute a suit in their n^ime against Hooker on the note in question. The object of this proceeding was, beyond question, to obtain security for the defendant. Supposing then that it resulted in placing the amr/unt in the hands of the defendant; how does the. case differ from what it would have been, had Hooker voluntarily plaeed it there without suit ?

The object being effected, Thrall became the principal debtor, having the funds in his hands for the payment of the debt. How then could he shelter himself under his character of attorney? Had not the plaintiffs their election, to proceed against him either as maker of the. note, or for money had and received ? Besides, it appears that he declined to have the money applied in payment of this debt. If he were justified in this, it must be upon the ground that the money was levied for another purpose; and if so, how has this debt become satisfied ?

If a part only of the money was paid to him, these remarks will apply to what he did receive. As to the residue, supposing the sheriff in default, the plaintiffs had their remedy either against the sheriff or the defendant; and might pursue either until they obtained actual satisfaction. The remedies being collateral, a judgment against one would be no bar to a suit against the other. If the officer be insolvent, the remedy against him is no satisfaction; and whether responsible or not, chancery would give the defendant, in case he pays' the debt, all the benefit of the plaintiff’s remedy against him.

As to any supposed collusion between the plaintiffs and the officer, or any equitable considerations which would preclude them from pursuing the defendants, it is sufficient to say, that the whole proceeding appears to have been under the control and direction of the defendant. The judgment of the county court must therefore be affirmed.