229 Mass. 363 | Mass. | 1918
The plaintiff recovered a judgment against-the defendant in an action of tort; and on the execution issued thereon the defendant was arrested under the provisions of R. L. c. 168. The officer’s return upon the execution is as follows:
“By virtue of this execution, and for want of goods, chattels lands or tenements, of the within named judgment debtor to be found by me, within my precinct, sufficient to satisfy the debt of the within named judgment creditor, I this day took the body of the said judgment debtor, Edward Loker, and had him in the court rooms of the Police Court of Newton in said County for a hearing before said court, and while waiting for the court to take up the case, by direction of Bernard F. Murphy, attorney for said judgment creditor, I left the said debtor Edward Loker, with his attorney, Mr. Bigelow, and the sureties for said hearings.”
The present action is brought upon the judgment. It was admitted at the trial that the execution had not been satisfied “except as appeared in said return.” The defendant contends that he was released by order of the creditor’s attorney after he had been brought before the court, and before any hearing had
One decisive question is whether the judgment creditor would be bound by the action of his attorney in releasing the judgment debtor (if he was so released), in the absence of any evidence to show that such act of the attorney was with the personal knowledge and consent of the judgment creditor.
It is a general rule that “An attorney at law has authority, by virtue of his employment as such, to do in behalf of his client all acts, in or out of court, necessary or incidental to the prosecution and management of the suit, and which affect the remedy only, and not the cause of action.” Moulton v. Bowker, 115 Mass. 36, 40. He has power to release an attachment before judgment, and do many other things incidental to the proceedings and necessary or advisable for the interest of his client. Moulton v. Bowker, supra. Shattuck v. Bill, 142 Mass. 56, 63, 64.
Notwithstanding the broad discretionary power vested generally in an attorney, in behalf of his client to do whatever is reasonably necessary to obtain judgment and to collect it afterwards, he cannot, by virtue of his employment, acknowledge satisfaction of a judgment except by payment in full. Lewis v. Gamage, 1 Pick. 347. Shores v. Caswell, 13 Met. 413. Brown v. Kendall, 8 Allen, 209. Shattuck v. Bill, 142 Mass. 56, 63. Nor has an attorney authority to bind his client by the discharge of a debtor from arrest except on payment in full of the judgment. Brown v. Kendall, supra. Simonton v. Barrett, 21 Wend. 362. Kellogg v. Gilbert, 10 Johns. 220; S. C. 6 Am. Dec. 335. Hall v. Presnett, 157 N. C. 290, 293. Pomeroy v. Prescott, 106 Maine, 401.
In Anglo-American Land, Mortgage & Agency Co. v. Dyer, 181 Mass. 593, at page 598, this court stated, “it is said that the weight of authority in this country seems to be against” the authority of an attorney at law by virtue of his employment to agree to a compromise of a suit out of court without his client’s sanction. Lewis v. Gamage, supra. Pomeroy v. Prescott, supra. See also New York, New Haven, & Hartford Railroad v. Martin, 158 Mass. 313; Brewer v. Casey, 196 Mass. 384; Gilman v. Cary, 198 Mass. 318.
In the case at bar there is nothing to show that the plaintiff authorized or consented to the release of the judgment debtor, or
In view of the conclusion reached, it is unnecessary to decide whether the judgment would have been satisfied if the plaintiff had been bound by the act of her attorney. See Crawford-Plummer Co. v. McCarthy, 227 Mass. 350, and cases cited.
Exceptions overruled.
