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 un*398derstood 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.