Davis v. . Bowe

*59 Vann, J. Upon the trial of this action the court in its charge to the jury said : “The plaintiff offered evidence to show that some time before the re-arrest, a notice was given that you have heard read here, signed by the attorney for the opposite party, directing the sheriff to discharge the plaintiff from arrest under the execution. I will hold here, for the purposes of this action, that that notice was sufficient to entitle the jilaintiff to a discharge, providing that such notice was left with the sheriff and not withdrawn, and that is the first question that you are to determine here.” The defendant excepted “to so much of the charge as stated * * * that the notice was sufficient to entitle the plaintiff to a discharge unless withdrawn.” The rest of the charge does not appear in the record and' hence it will he presumed that all questions of fact, aside from the one to which the exception relates, were properly submitted to the jury and that they decided them in favor of the plaintiff. This exception raises the question whether the notice signed by the attorney who issued the execution was, under all the circumstances, effective as a discharge of the prisoner. The defendant insists that an attorney has no power, by employment as such, to discharge a defendant taken ’ in execution. (Jackson v. Bartlett, 8 J. R. 361; Kellogg v. Gilbert, 10 id. 220; Simonton v. Barrell, 21 Wend. 362.) On the other hand the plaintiff argues that, as the judgment was for costs only, the attorney had absolute control of the remedies given for its collection; and that as the sheriff had notice of the fact through the recitals in the execution, he should have recognized the paper as a valid discharge. (Tunstall v. Winton, 31 Hun, 219; Marshall v. Meech, 51 N. Y. 140; Shackleton v. Hart, 20 How. Pr. 39.) Without passing upon these questions, we are of the opinion that the act of the attorney in directing a discharge could not be disregarded by the defendant, as in the absence of suggestive or significant circumstances, he had no right to presume that an officer of the court had acted in violation of his duty. It is provided by section 1260 of the Code of Civil Procedure that the *60 docket of a judgment must be cancelled and discharged by the clerk in whose office the judgment roll is filed, upon filing with him a satisfaction piece describing the judgment and executed, if'made within two years after the filing of the judgment roll, “by the attorney of record of the party.” Thus the power of the attorney to acknowledge satisfaction is clear and the duty of the clerk to recognize it by cancelling the judgment, as docketed, imperative. Assuming that, even in the case of a judgment for costs only, the attorney has no right, as between himself and his client, (Beers v. Hendrickson, 45 N. Y. 665), without express authority, to issue a satisfaction piece unless the judgment is paid, that does not affect the duty of the clerk, at least in the absence of notice. The command of the statute is that the docket of the judgment must be cancelled and discharged by him. Service upon the sheriff of a certified copy of a discharge by the clerk of a judgment would be notice to him that his power to collect an execution issued upon such judgment was at an end. Less formal notice while not conclusive upon him might charge him wit! the duty of making inquiry before taking further action and he would be entitled to a reasonable time for that purpose. If when a judgment is paid to the attorney, the judgment debtor is in custody, either actual or constructive, under an execution issued against his person upon such judgment, it is manifestly within the power of the attorney to authorize the sheriff to discharge him. The power to issue a satisfaction piece implies a power to discharge and while neither power may be exercised, as between the attorney and his client, to the injury of the latter, third persons, in the absence of notice to the contrary, have the right to presume that the power, when exercised, was authorized by the client, either expressly, or by virtue of the original retainer. When, therefore, the direction to discharge was served upon the sheriff, on the occasion in question, the presumption arose that it was duly authorized, because it was within the apparent powers of the attorney. Moreover, if an attorney does an act, which would be a violation of his duty, unless a certain condition had first *61 been performed, it will be presumed that such condition was performed. (2 Best on Evidence, [Wood’s ed.] 641-645; Hamilton v. Wright, 37 N. Y. 502; Corning v. Southland, 3 Hill 552. It follows that when the order to discharge the plaintiff from custody by virtue of the execution against his person, reached the sheriff, it was accompanied with the presumption of lawful authority. While this presumption may not have been conclusive upon the defendant, it required some action on his part. Having received the discharge without objection, he was bound to return it, or give notice that he required something further or else to act upon it as sufficient. He retained it for twenty-four days without notice or question and then treated it as a nullity. If he was in doubt as to the authority of the attorney, it was his duty under the circumstances to say so. If he wanted further proof, he should have demanded it. If he had any reason to question the sufficiency of the discharge, or for refusing to comply with it, he should have made it known, so that the plaintiff would have had an opportunity to remove the objection. But he said nothing and did nothing, leaving it to be inferred that he was satisfied in all respects. Therefore, when he caused the plaintiff to be re-arrested, under the facts as the jury is presumed to have found them, he acted at his peril and must suffer the consequences. The judgment should be affirmed, with costs. All concur. Judgment affirmed.