Jackson ex dem. M'Crea v. Bartlett

8 Johns. 361

• Court: New York Supreme Court
• Decided: October 15, 1811
• Status: Published

Opinion

Per Curiam.

1. The question on the regularity of the fi.fa. could not be raised in this case. Though the execution may have issued a year and a day after judgment, without revival by set. fa. it was only voidable at the instance of the party against whom it issued. (3 Lev. 403. 3 Caines, 271. 273.) It was good in point of form, and several reasons might possibly have been assigned, if the question had come up on motion to set it aside, why the execution was duly issued, even after the year and a day. It was not for the present defendant to question a purchaser s title under such an execution. It was a good authority for the sale. (Shirley v. Wright, 1 Salk. 273.)

2. Nor is there any more weight in the objection that the plaintiff had concluded himself, by .electing to sue the sheriff for the escape, and to proceed to judgment against him. The satisfaction that is stated to have been obtained upon that judgment, whatever might have been its force, otherwise, is tp be put out of view in this case, for it appears to have been long after the sale and purchase by the lessor of the plaintiff. His title could not be affected by matter subsequent to the sale, and between, strangers with whom he had no privity. The statute gave the plaintiff in the first execution, a right to sue out any other execution after the escape; (Laws, vol. 1. p. 213.) and his instituting a suit for the escape, did not deprive him of that right, because the suit and judgment against the sheriff was no satisfaction, nor were the two remedies inconsistent with each other. He was at liberty to pursue both the remedies, concurrently, until he had obtained satisfaction upon one. In Rawson v. Turner, (4 Johns. Rep. 469.) the election of one remedy was incompatible with the pursuit of the other, as the one remedy was upon the ground that the other had' ceased". The party was not then concluded in this case, by any election, and the ft.fa. was duly sued-out, notwithstanding the judgment against the sheriff.

3. The only remaining^ point is, whether- the proof offered by the defendant, that the first execution was satisfied by the discharge of the prisoner-, ought to have been received. -The offer was to show that the attorney for Bedell had permitted Mallory to be discharged from the ca. sa. The defendant was not concluded from this proof, by the circumstance of his having produced the judgment qgainst the sheriff for the escape. As he was a stranger'to that judgment, and without notice of such a suit, he was not bound by it; but he produced1 the judgment for another purpose, which failed, and he then resorted to parol proof, to meet the like proof which the plaintiff had offered relative to the escape. The great and decisive objection to the evidence offered, is, that it Was of no avail. because the attorney to the plaintiff in the suit had no authority, from his general character, as attorney, to discharge the defendant from execution on ca, sa. until the money was paid. It was a disputed point as early as the case of Payne v. Chute, (1 Roll. Rep. 365.) whether an attorney could acknowledge satisfaction without receiving the money. Coke and Doddridge, Justices-differed upon that point; and there is no case in which that authority has been adjudged to belong to him, and it is against the nature and limitation of his trust. An attorney’s authority determines with the judgment, or at least with the issuing of the execution within the year. (2 Inst. 378. 2 Bos. & Pull. 357.) The most that the cases say, is, that he may receive the money recovered by ca. sa. and then acknowledge satisfaction. (2 Show. 138. 1 Roll. Rep. 365.)

The Court are, therefore, of opinion, on all the points, that the plaintiff is entitled to judgment,