Lovell v. Orser — 14 N.Y. Super. Ct. 349

Majority

p. 349

Joseph Lovell and James Colles, Jr., Respondents, v. John Orser, Sheriff, &c., Appellant.

Headnote

In an action against a Sheriff,, for the escape of a party, in his custody under an execution against the body, it is not a defence, that the attorney of the plaintiff consented that such party might go to another place, out of the bailiwick of said Sheriff, in order to attempt to raise money, with which to pay the judgment on which the said execution was issued.

(Before Duer, Ch. J., and Hoimas, J.)

Heard, May 21;

decided, June 13, 1857.

This action comes before the Court at General Term, on an appeal, by the defendant, from a judgment rendered against Mm at Special Term.

It is an action for an escape. On the seventh of June, 1853, the plaintiffs in this action commenced a suit in this Court against Hubbard and Barton, and obtained an order for their arrest, directed to the defendant, as sheriff, and, as appears by the defendant’s official certificate, they were, on the same day, arrested. Judgment in favor of the plaintiffs in that action was perfected, July 5, 1853, and an execution against property was issued thereon, and returned nulla bona. Thereupon an execution against the body was issued on said judgment, to, and was served by the defendant as sheriff, and Hubbard and Barton were arrested thereon, and gave bail for the limits. In May, 1854, Hubbard escaped, and this action was brought. It was tried without a jury, before Mr. Justice Woodruff, in October, 1856, who gave judgment for the plaintiffs. On the trial the defendant offered to show that, in a conversation between Mr. Hubbard and the attorney of the plaintiffs in the action in wMch Hubbard was in custody, the attorney verbally consented that Mr. Hubbard might go to PhiladelpMa; and that in pursuance of that consent Mr. Hubbard went to PhiladelpMa, and that the declared purpose of the giving of that consent, and of said Hubbard in going, was to get money wherewith to pay the judgment, the record of wMeh had been produced in evidence, and that for this alleged escape this action was brought.

p. 350

The counsel for the plaintiffs objected to this evidence on the ground that the attorney had no power to so consent, unless the defendant would go further and show that this consent was given with the knowledge or concurrence, or received the approbation of the plaintiffs in the judgment or of one of them.

The counsel for the defendant having stated that he did not propose to give such proof in connection with the offer, but insisted upon the testimony being admissible, as offered by him, the Court sustained the plaintiffs’ objection and refused to permit the evidence to be given; and the defendant duly excepted to the decision.

The finding of the judge, before whom the action was tried, is as follows:

" First.—That the plaintiffs did recover the judgment set forth in the plaintiffs’ complaint.

Second.—And that the defendant, on or about the 27th day of May, 1854, suffered or allowed the said Thomas S. Hubbard to escape from his custody, or go out .of his bailiwick, or county, as alleged in the complaint.”

To which last finding, the defendant, by his counsel, excepted, and the exception was duly noted.

“ Third.—That this action was commenced against the defendant, while the said Hubbard was out of the defendant’s bailiwick.”

To which last finding the defendant, by his counsel, excepted, and the exception was duly noted.

And the said Justice then and there was of opinion, and decided as his conclusion of law, .from the facts so found by him, that the defendant was liable to the plaintiffs for the amount of the said judgment so recovered against the said Hubbard and Barton, with interest thereon from the time of perfecting, said judgment, to which decision, the defendant, by his counsel, excepted. •

The said Justice did thereupon give judgment for the plaintiffs against the defendant for $1,220 84, and the defendant excepted to such judgment being given.

•From that judgment the defendant appealed to the Genera) Term.

p. 351

J. N. Balestier, for plaintiff and respondent.

A. J. Vanderpoel, for defendant and appellant.

The only question in the cause arises upon the refusal of the Judge to admit the testimony offered to show that, the attorney of the plaintiffs in the suit against "Hubbard and Barton gave a consent to his going to Philadelphia for the purpose of raising money to pay the judgment. This was rejected on the ground that such a consent would not of itself, and alone, avail as a defence to the sheriff.

We consider this ruling to have been correct.

The case of Kellogg v. Gilbert ( 10 John Rep. 220 ) settled this point; and was very much like the present in its circumstances.

Dexter v. Adams ( 2 Denio, 646 ), is clearly distinguishable. An agent of the plaintiff had concerted a fraudulent scheme, to decoy the parties off the limits, and had a capias in his pocket, to be delivered to a coroner - to serve upon the sheriff, at the moment of accomplishing his intended fraud.

The statute (2 R. S. 262, § 26-29) has been referred to. It extends the authority of the attorney beyond the entry of the judgment, and enables him to receive payment, and acknowledge satisfaction at any time within two years.

In Gorham, v. Gale (7 Cowen, 744), the power of an attorney during the progress of a suit, was treated of at length, in the opinion of Mr. Justice Woodworth. It was stated that, although he had not power to enter a retraxit, or discharge a party from execution without payment, he may and ought to exercise his discretion in all the ordinary occurrences which take place in relation to the cause.

In Benedict v. Smith (10 Paige, 127), the Chancellor, after adverting to the statute, and speaking of the powers of the attorney of record of a plaintiff in an action, in which the plaintiff had recovered a judgment, said, “ The defendant was authorized to consider him as the attorney of the plaintiffs in the judgment, and as possessing the general power and control over the proceedings for the obtaining satisfaction of that judgment, which the attorney on record has, by virtue of his general retainer, in other cases.” “ If the property levied on by the execution in

p. 352

this case had not been sufficient to pay the whole debt, if sold by the sheriff in the ordinary way, a question of some importance might have arisen, whether the attorney on record, who is employed to collect a doubtful debt for his client, may not, even after judgment, receive a part of the debt, and discharge the hen of the judgment upon receiving security for the residue of the debt.”

But in that case, the Sheriff had levied upon property sufficient to discharge the debt. The attorney took an assignment of a security, and in his own name, and discharged the judgment. It was held that he had exceeded his powers; but as the client had ratified his acts, such ratification was held equivalent to a prior authority, and the clientwas held to be concluded by them. This statute and case do not, in our opinion, warrant so great a change in the long settled law as must be effected, in order to hold the present defendant discharged by the facts offered to be proved.

In a late case Baron Parke said, that the attorney, in a Court of law, is not like a proctor in the ecclesiastical courts, “ dominus litis, but he is the mere agent of the suitor.” (Thatcher v. D'Aquilar, 11 Ex. Rep. 436).

We think the judgment must be affirmed.

Affirmed accordingly.