
    No. 7218.
    Royse, Ex’r, et al. v. Leaming.
    
      Evidence. — Secondary.—When Admissible. — Attorney.—Declarations.—On the trial of an action to obtain an entry of satisfaction of a judgment on the ground of the payment thereof, by one of the execution defendants, while an execution thereon was in the hands of the sheriff, to an attorney of record for the judgment plaintiff, who was also deputy-sheriff, the declarations and admissions of such attorney tending to show the payment of the judgment, or execution issued thereon, are admissible in evidence, when, at the time of such trial, both the attorney and said judgment defendant were dead. Elliott, J., dissents.
    From the Tippecanoe Circuit Court.
    
      J. M. Larue, F. B. Everett, H. W. Chase and F. 8. Chase, for appellants.
    
      G. O. Behm and A. O. Behm, for appellee.
   Woods, J.

— Suit by appellee to obtain entry of satisfaction of a judgment, on the ground that while execution was. in the hands of the sheriff, Kirkpatrick, one of the execution defendants,had made full payment to one of the attorneys of record for the judgment plaintiffs.

Before the trial said attorney and-the judgment defendant, who had made the alleged payment, had died. At the trial evidence was admitted of declarations and admissions by said attorney tending to show payment of said judgment, or of the execution issued thereon.

Whether this evidence was properly admitted, is the only question to which counsel for appellants have invited our attention.

We extract, in substance, so much of the bill of exceptions as is necessary and pertinent to be considered :

“The plaintiff then had sworn as a witness, David Gr. Smith, and offered to prove by him certain declarations made by one Z. M. P. Hand, one of the attorneys for the judgment plaintiffs, which declarations were not made in. the presence of any of said judgment plaintiffs. The defendants objected because the proposed declarations were not made in the presence of any of .said plaintiffs for whom said Hand was attorney, .and because not made in connection with any act done or receipt of money by said Hand ; but the court overruled the objections, and allowed the witness to testify, as follows:
“ ‘Colgrove was sheriff. I came in as his successor, August 25th, 1869, and received from him the execution issued in the judgment in question. Colgrove, acting by Mr, land, his deputy, had levied the writ on Kirkpatrick’s real (state, as shown by the endorsement in Hand’s handwriting, lefore that time I had been deputy for Colgrove and so had Hand. Hand told me he had full control of this writ himslf ; that there was no need of seeing Mr. Ensminger about it; that he was the attorney for the plaintiffs, and ivould elidirse on the execution an order for its return. He said he vas attorney and as much deputy as I was. He said to me aid young James Colgrove, that we need give ourselves no uieasiness about this, writ, as that matter was settled and he vould order that writ returned. I had frequent conversations with him. Hand acted as my deputy after I came into office. I don’t recollect how long; think not to exceed two nonths, although he may have been more. Hand said I reed not give myself any uneasiness, as that matter was fully sittled. I never saw any money paid on the writ. Neither' Ensminger nor any other of the judgment plaintiffs were ¡¡resent at any of these conversations. Hand told me that le had endorsed the writ and returned it. I spoke one day ibout going to see Mr. Ensminger about this execution when Hand said, ‘You have troubled me enough about this matter ; that is settled, and I will order the writ returned.’
“The record of the judgment, and the execution and endorsements thereon, were put in evidence. Besides the levy, the following were the endorsements on said writ ‘Sheriff will return this writ, March 14th, 1870.’ Signed, ‘Z. M. P. Hand, Pl’ff’s Att’y.’ ‘As above ordered, I therefore return this writ, March 14th, 1870.’ Signed, ‘D. G. Smith, Sh’ff, J. H. Godman, Dep’ty.’
“It was admitted that the writ was found in a pigeonhole in the sheriff’s office and not returned, or the return recorded in the clerk’s office, until long after the return day of the writ.”

If the action of the court in admitting this testimony pan be upheld, it must be on the ground that the declaration/ in question were secondary evidence, receivable only becaus/ of the death of the person who made them. Upon this subject the following language is found in 1 Greenleaf Evidence, sec. 147 :

“This class embraces not only entries in books, but dl other declarations or statements of facts, whether verbil or in writing, and whether they were made at the time <f the fact declared or at a subsequent day. But, to render then admissible, it must appear that the declarant is deceasec; that he possessed competent knowledge of the facts, or thit it was his duty to know them; and that the declaration were at variance with his interest. When these circunstances concur, the evidence is received, leaving its weiglt and value to be determined by other considerations.” Sec, also, 1 Greenl. Evi., secs. 148-155.

The same doctrine is recognized and illitstrated by Wharton, in his Laws of Evidence, vol. 1, secs. 226-237.

We think all the circumstances required by the rule aj laid down concurred to make admissible the declaration! which are shown to have been received in this case.

The declarant, Hand, as attorney for the execution plaintiff ¡and as deputy sheriff, having charge of the writ, was under !a duty to know, and, it may fairly be presumed, did know ¡’the facts; and his declarations, if they tended to show, as 'under the circumstances it is apparent they did tend to show, payment of the execution to him, were clearly against his interest, both as attorney responsible to his client, and as deputy sheriff responsible to his principal, for a proper application of the money; and of his death there is no question.

But counsel for appellants insist that the admission of the declarations complained of was in violation of section 772 of the code of practice, which defines the authority of attorneys of record as follows, namely:

“Sec. 772. An attorney has authority until discharged or superseded by another.
“First. To bind his client in an action or special proceeding by his agreement, filed with the clerk, or entered upon the minutes of the court, and not otherwise.
“Second. To receive money claimed by his client in an action or special proceeding, during the pendency thereof or afterward; and upon the payment thereof, and not otherwise, to discharge the claim, or acknowledge satisfaction of the judgment.”

It is claimed under this statute, that an attorney can acknowledge satisfaction of a judgment upon payment only, and that by “upon payment” is meant “immediately upon or in connection with the payment.”

It must be admitted that the declarations proven in this case were not shown to have been made at the time of any payment, and, if payment is inferred from the declarations themselves, it was a payment made at some undefined time before the making of the declarations. If, however, the declarations had been shown to have been made upon or in connection with the receipt of money by Hand from Kirkpatrick, they would have been primary evidence, admissible, doubtless, as a part of the res gestae, explanatory of the receipt, and this whether Hand had been alive or dead.

It is not upon this ground at all that we sustain the action of the lower court. Indeed, the fact that Hand was an attorney of record for the execution plaintiffs is not the turning point in the question or discussion. The fact is important only as it shows his knowledge of the facts, or his duty to know them, and an interest on his part adverse to his admissions or declarations. Indeed, had he not been attorney at all, but only a deputy-sheriff, under the circumstances' shown, we do not perceive why, under the rule, his declarations would not have been equally admissible.

Judgment affirmed, with costs.

Elliott, J., dissents.

Petition for a rehearing overruled, Howk and Elliott, JJ., dissenting.  