7 Wend. 35 | N.Y. Sup. Ct. | 1831
The question as to the admissibility of the evidence objected to by the defendant below, is involved in that concerning the effect of the facts proved by it. If the facts destroyed the defence interposed by the sheriff, the objection to proving them, not having regard to the mode of proof, must be unavailing. The only question to be passed on by us, is whether the forged satisfaction piece received and filed by the clerk as a genuine paper, and the entry of satisfaction in the docket book of judgments, constitute a defence to the sheriff for the escape of Smalley. So long as the judgment remained unsatisfied and unreversed, the execution which had been issued thereon was effective, and the sheriff cannot excuse himself for not detaining the defendant therein named in custody. It is not shown that the judgment was satisfied by actual payment. The evidence relied on to shew the payment, is the satisfaction piece and the entry upon the docket of judgments.' The plaintiff below had a right to controvert this evidence, unless it was invested with the sanctity of a record.
A satisfaction piece was compared on the argument to a bail piece, and if the resemblance holds, we must regard it as a record, and refuse to hear any allegation against it. 16 Johns. B. 55. The recognizance of bail is, in contemplation of law, the act of the court, and is entered as such ; consequently it partakes of the unimpeachable verity of its records: but nothing is found in the books, or in the nature of the instrument, that should induce us to look on a satisfaction piece in the same light. If we recur to the practice of the king’s bench, from which the practice of this court is derived, and to which it in a great measure conforms, we shall see that a satisfaction piece is not there regarded as a record of the court; nor is the acknowledgement of it, either in fact or contemplation of law, the act of the court, When the judgment is paid or satisfied, the plaintiff gives a warrant or authority to some attor
But we have a statutory provision in relation to satisfaction pieces, and it was contended that it makes them records, or recognizes them as such.- We do not so understand the act referred to-; it merely regulates the taking of satisfaction pieces, but says nothing as to their character or legal effect. It requires that they shall be' signed by the parties in whose favor the judgments are rendered, and designates the officers before whom they shall be acknowledged. . 1 R. L. 506. When thus signed and acknowledged, they are what satisfaction pieces in England are, when signed by an attorney for that purpose authorized—a warrant to the officer of the court having charge of the record to enter a satisfaction on the roll; but until that satisfaction is entered of record, there is no record to countervail that of the judgment.
It was contended that if the satisfaction piece was not of itself, when filed, a record, the entry of the clerk in the docket of judgments was tantamount to an entry on the roll. It has been so regarded, it seems, as appears from the testimony of the clerk of'the court in which this record was filed, and by reference to the earliest writer on the practice of this court. Mr. Wyche says: “ When a debt is levied on the execution, or paid by the debtor, the next step is to enter satisfaction of the judgment on the roll, and by that means extinguish its effect.” To do this, he directs a satisfaction, piece to be prepared, and acknowledged before a judge ; “then,” he says, “ file it in the office, and the clerk marks satisfaction on the dock-
But as the clerk might have entered the satisfaction on the roll by the authority given to him by the satisfaction piece, it is insisted that we ought to adjudge it to be done on the principle that a court will consider that done in regard to their recoi'ds which they will give a patty leave to do. 4 Wendell, 409. This is not such a case. A court will not consider that done, which, had it been done, would have been the consummation of fraud or forgery ; and which, if done, they would have set aside, as done without authority. It is true, the clerk might have mistaken the satisfaction piece filed in this case for a genuine one, and under that mistake made a record which would have destroyed the effect of the judgment, as long as the court did not interfere to vacate it; but no such record is made, and we ought not to imagine one, to give the defendant the benefit of it in this case.
.It was urged upon us, and it is confessed, with considerable force, that by permitting a recovery in this case against the officer, we were establishing a rule, the operation of which will be oppressive upon sheriffs ; but parties have rights as well as officers, and we ought to take care, while endeavoring to lighten the responsibilities of the latter, not to sacrifice the interests of the former. After all, the hardship is more in imagination than reality. If the defendant is on the limits upon bail, the sheriff is not called upon to do any affirmative act, and therefore cannot be answerable to the defendant for a misfeasance; and if he is in close custody, the sheriff will not be bound to act merely on the satisfaction piece; he may, for his own safety, require that the satisfaction be entered of record. If a sheriff should give credit to a satisfaction piece, which was an entire forgery, not only as to the name of the plaintiff in the judgment, but as to that of the officer before whom the acknowledgment purported to have been made, it
If the conclusion is correct, that there was no record of satisfaction in this case, all difficulty is removed, and we ought not to be influenced by any supposed inconveniences in which the law may involve officers. It is undeniable that nothing but a record can countervail the judgment record. There are cases which show that payment, even to the sheriff himself, does not entitle the defendant to his discharge as a matter of cour.se; and the sheriff has been held liable for an escape, for discharging a prisoner in custody on a ca. sa., after having received payment for the judgment. It is said by Fenner, J. in Stringer v. Stanlack, Cro. Eliz. 404, “ When the defendant is one taken by force of a ca. sa., the sheriff himself cannot discharge the prisoner without offence to the law, although he had received the monies ; for the writ is capias ad satisfaciendum ita quod habeas corpus ejus, &c. So, although he pay the money, yet the sheriff ought not to discharge him ; and if he do, he is chargeable with an escape.” Ch. J. Popham concurred in this opinion. The same doctrine was established in the case of Compton v. Ireland, 1 Mod. 194, and two anonymous cases, to be found in 12 Mod. 230 and 385. It is not necessary to say how such a question would be decided at this day ; there is, however, little doubt that if there was the usual endorsement on the writ of the sum to be received» such endorsement would be construed into an authority to the sheriff to receive, and to the defendent to pay ; and if payment was made, and the defendant discharged from custody, the plaintiff’s right against the defendant for the debt, and against the sheriff for the escape, would be gone.
The conclusion is, that the judgment recovered' against Smally was not satisfied, discharged, or its legal effect impaired by the satisfaction piece, or the entry made in the docket of judgments ; that it remained in full force when the action in the court below was commenced ; and that Smalley’s departure from the limits was an escape, for which the sheriff was liable.
Judgment affirmed, with single costs.
Mr. Justice Marcy was present at the argument of this cause, and having written an opinion in the case, it was adopted by his associates, and is published as the opinion of the court, although previous to the May term he had resigned his seat on the bench. The same remark applies to other opinions published as of this term, designated as per curiam opinions.