Gorham v. Gale , 7 Cow. 739 ( 1827 )

Curia, per Woodworth, J.

In February term, 1826, a new trial was granted in this cause, after a verdict for the plaintiff, on facts not varying materially from the present, excepting that these additional points are here raised: -1. As to the admission of parol evidence to prove the execution ; 2. That on the last trial there appeared, a variance between the letter of instructions, and the directions given by the plaintiff; 3. That the sheriff executed a deed of the premises.

First, then, was the notice to produce the execution, given in reasonable time ? If the execution had been in the sheriff’s possession and under his control at the trial, the notice would have been sufficient. But there is no evidence of this; nor any presumption that, when he left home, he took with him evidence not then called for; and. which it was necessary for the plaintiff to produce. The question of reasonable notice depends on the facts disclosed. I do not think, that, at the circuit, one party has a right to call on the other to produce documents, the production of . which will require him to travel a distance to procure them; and when, for aught that appears, during the interval, the cause may be ordered on for trial. Besides, *it was unreasonable to impose on the defendant the trouble and expense of sending for a paper, which, had the other party exercised ordinary diligence, might have been avoided. If the execution was really a necessary part of the plaintiff's proof, he was guilty of laches in not having given the notice somewhat earlier. No cause is assigned for the omission; and, under the circumstances, the parol evidence ■ should have been excluded.

Secondly ; it seems to me, that, whether we take the instructions stated by Mr. Baleigh, or the letter written by him, there is no substantial difference. But if it were otherwise, I apprehend it was competent for the attorney to give the directions contained in his letter; and that his client was bound by them, It was a proceeding in the progress of the suit, considered beneficial to the parties in that action; and within the scope of the authority vested in the attorney. Although he cannot enter a retraxit, (Cro. Jac. 211; 1 Bac. Abr. 299,) or discharge a defendant from execution without payment, (2 John. 361; 10 John. 220,) he may, and ought to exercise his discretion in all the ordinary occurrences, which take place in relation to the cause, He may make stipulations, waive technical advantages, and generally assume the control of the action. It has been held, that the attorney’s consent to stand to an arbitration, will bind the client. (Carth. 412; 1 Salk. 70; 1 Bac. Abr. 299.) So also, where the attorney entered a remittit damna as to part, and took judgment for the rest, it was held regular ; and that this need not be by the plaintiff in person. (2 Ld. Raym. 1142; 1 Salk. 89.) Indeed, it is stated as a doubtful point in Crary v. Turner, (6 John. 53,) whether the attorney on record could not discharge the debt without satisfaction. The court say that, to him, “ The law necessarily confides a pretty enlarged discretion and control over the suit.” The instructions then were binding on the plaintiff.

Thirdly; I do not think the execution of the deed material. The plaintiff contends, that this is an affirmance of the acts of Stevens; and therefore the defendant is liable. In the first place, there is no proof to show that the "''defendant had any knowledge of the facts and circumstances, relating to the arrangement made by the plaintiff with Stevens, or that the sale was to be conducted out of the usual course. If, therefore, independent of the fact that a deed was executed, the defendant was not liable, knowledge of the previous proceedings; before he executed "the deed, ought to have been shown. The act of executing a conveyance, is the ordinary act of the sheriff after a sale. It may be executed either by the sheriff of his deputy. And, so far as it is an affirmation of anything, it is that a sale has been made in the usual manner. The mere execution of "the deed never can, or aught to be considered an affirmance of acts for which the sheriff was not before liable. Besides, if the defendant had known that the plaintiff had made Stevens his agent, or had given him the instructions proved, it opposed no ground of objection to the execution of the deed. Between the parties, the course taken was perfectly proper, if they preferred it. "Whether the sale was in the ordinary way, or under these special instructions, a deed would become necessary to be executed by the sheriff or his deputy. The sheriff only required to be convinced that a sale had been made, the execution satisfied, and that James Getty was entitled to a deed. These facts are undoubtedly affirmed : but in what manner payment was made, whether to the plaintiff or his attorney, or to a special agent, or whether the money was paid under circumstances to render the sheriff liable or not, are questions with which the deed has no connection. It leaves them as it found them, to be decided upon the pre.-existing facts. If, however, the deed established the plaintiff’s right to recover, then that right did not exist before the 24th day of November, 1825, the day of, its date. This action was commenced a considerable time before.

The only remaining question is, as to the legal effect of the instructions given to Stevens. That is the same presented on a formór occasion. We then held that a sheriff is only amenable for the acts of his deputy in the ordinary execution of his office. To see that, in this case, he had •not acted in that manner, but must be considered *as the agent of the plaintiff, it is only necessary to look at the instructions. The 200 dollars were not to be credited until the whole was paid. Here is a departure; for payment -made to a sheriff, is a satisfaction pro tanto. Six months were allowed to pay the balance. A credit is unknown in the law regluating sheriff’s sales. The judgment was to stand until the whole was paid : whereas, by law, in the ordinary discharge of the sheriff’s duties, only the part unpaid would stand in force. On payment of the balance, a certificate was to be given. By the statute of 1820, (sess. 43, ch. 184, s. 1, p. 167,) a certificate should have been given at the time of sale, and a duplicate filed within ten days after. It will not, I think, be contended that here was not a departure from the duties of a sheriff, in the regular discharge of his official business. If there be a departure by the deputy, is the sheriff' responsible ? Ho proposition is clearer, than that the sureties of the deputy are not amenable beyond default of their principal in his official duties. The conclusion that follows is, that the sheriff ought not to be liable for the acts of his deputy, unless his redress against the deputy and his sureties is unquestionable. That the sheriff is only answerable dviliter for the malfeasance or nonfeasance of his deputies, in the duties enjoined on them by law, is well settled by various authorities. (4 Mass. Rep. 63; 2 Esp. Rep. 591; 4 T. R. 119.)

On the whole, it is the opinion of the court, that judgment be entered for the defendant;

Judgment for the defendant.