Martha Hardy versus Onslow Peters, 19 Pick. 370

Shaw C. J. delivered the opinion of the Court., It appears by computation, that the proceeds of the personal property, which was sold on mesne process, by consent of parties, pursuant the statute, amounted to more than sufficient to satisfy all the prior attachments, and leave a larger sum than that for which the plaintiff has obtained her judgment. The question is, whether she has a right to recover it of the defendant, in this form of action.

As the defendant represented all the creditors entitled to these proceeds, it was competent for the officer, with the consent of the debtor, or at his own peril, of procuring the assent of the debtor, to pay over the money to the creditors or to their attorney ; and the defendant cannot be permitted to say, that he did not receive it to the use and benefit of his- several clients.

But as he received it as an aggregate sum; without distinguishing what part was received for one, and what part for another, the inference of law is, that he received it for his respective clients, according to their respective legal rights of priority. It was contended, that until the executions were received, it was the properly of the officer, and that the defendant would be liable over to the officer for it. Had he received it as the depository of the officer, and undertaken to return it to the officer on request, this might have been so.

And so, if the officer had refused to pay it over and insisted on keeping it until execution obtained, he had a right to do so. But by paying it over to the creditors’ attorney, without waiting for an execution, he waived that right, and consented to pay it over to the use of the creditors ; and then by the form of the receipt given by the defendant and accepted by the officer, it is manifest that such was the intent of the parties.

The defendant therefore is chargeable to the plaintiff, not in virtue of his agreement with the officer, to receive and appropriate the money, but because he has collected so much money as her attorney for her use. In order to prove a demand upon the defendant before action brought, the plaintiff offered Rawson, the officer, from whom the money had been received ; and he was objected to, as incompetent, on account of interest. It is not distinctly stated, how he is interested in the event of this suit.

If the plaintiff should hereafter call upon the officer for the money in case of failing in this suit, he hold the receipts of her acknowledged attorney, for the amount, which would be a good defence. Should he be called upon in an action by the original defendant, E. B. Hardy, for the money, if he could show that he paid it to the attaching creditors before execution, with his assent, it would be a perfect defence.

But whether be could or not, the verdict and judgment in this suit, between the plaintiff and her. attorney, could not be given in evidence, ard would not affect the right of the original defendant to recover it of the witness. The defendant having received the money of the officer, as, the attorney of the plaintiff, and for her use, is bound to pay it over to.*her, whether the officer paid it rightfully or not. . , The Court'are of opinion, that Rawson was a competent witness,.that the instructions were correct, and that the plaintiff is entitled to judgment on the verdict.