Governor v. Read , 38 Ala. 252 ( 1862 )

A. J. WALKER, C. J.

The clerk, as an officer had no authority to-.accept paymentof the plaintiff’s'debt, until judgment was-rendered; and a payment to him, before judgment, would, therefore, not discharge the debt, orconstitute any barrier to the revival of the judgment. — Code, § 651; Currie v. Thomas, 8 Porter, 293 ; Murray v. Charles, 5 Ala. 678 ; Dean v. Governor, 13 Ala. 526; Fitzpatrick v. Br. Bank at Montgomery, 14 Ala. 533 ; Snedicor v. Davis, 17 Ala. 472.

The court, in its charge, recognized the principle above stated,' but announced that, if the clerk, having received the money before the judgment, afterwards, still having it, wrote upon the docket, in pencil mark, beneath the judge’s entry in the case, the word “ settled,” intending thereby to signify‘an appropriation of the money to the payment of the judgment, the judgment was discharged. This, at least, is the substance of the instruction, when construed in reference to the testimony.

After the judgment was rendered, the clerk occupied the double capacity of an agent authorized to pay oft the judgment, and having the money for that purpose in his possession, and also of an officer authorized by law to receive it. The cases of persons filling the double capacity of executor and trustee authorized to receive from the executor, or of administrator and guardian of the distributee, afford, perhaps, as close an analogy as' can be found in the law to the question in hand. In those cases it is held, that the executor or administrator remains chargeable, until he has made it appear, “ by some plain and unequivocal act,” that he has elected to hold the fund in his capacity of trustee or gpardian. — Perkins v. Moore, 16 Ala. 9 ; Davis v. Davis, 10 Ala. 299; Newcomb v. Williams, 9 Metc. 525. The clerk, as an individual, having the money with which to discharge the judgment, and being as an officer authorized to receive it, might pay the money to himself in his official capacity, as he might receive it in that capacity from a third person ; and this, upon the principle of the authorities above cited, would be done when, having the money, he manifested by some plain and unequivocal act an intention to hold it in his official capacity.

Such a plain and unequivpcal act was done, when the clerk wrote the word settled upon the docket, in the manner above stated, with the intention to signify an appropriation of the money in his hands to the satisfaction of the judgment. The word “settled,” written upon the docket by the clerk, imports that the judgment was discharged in some manner. It is in itself equivocal, in this, that it carries with it no evidence of the manner i® which the settlement was made; but, when '-¡coupled with the additional fact, that money had previously been placed in the hands of the clerk for the purpose of discharging the judgment, and that the entry of settlement was made in reference to that fact, it becomes plain and unequivocal. It is a clear demonstration of the clerk’s election to treat the judgment as discharged in consequence of the previous reception by him, and*of his intention to hold the money as clerk. The charge is consistent with this conclusion, for it makes the discharge of the j udgment dependent upon the fact, that the clerk’s entry was made with the intent to signify an appropriation of-.the money previously received to the payment of the judgment.

The charge which -was requested and refused, is the converse of the«charge«that we have decided was properly given, except that it gives prominence to the point, that the defense was not sustained unless it was shown when the entry of “settled” was»made. The point made is not that it was incumbent upon the ¡defendant to show that the entry was made.after the judgment was entered, but the particular time at which it was made. So far as the question of the discharge of the judgment was concerned, it was not material to showithe precise time. It was sufficient to show that the time was after the judgment was rendered ; for, at anytime after.that event, the clerk had the requisite authority.

The evidence objected to tended clearly to show the facts which we have decided constituted a good defense; and, there was, ..therefore, no error in admitting it.

Affirmed.