
    Baldwin & Campbell vs. Merrill.
    1; An attorney has no right to receive any thing but money in satisfaction of a judgment on a claim in his hands for collection, and any transfer of a judgment by him would be void; where/he received a note from the execution debtor under an agreement that the debtor might run the execution against his co-defendant, the reception of the money on such note from the hands of the attorney,' is a satisfaction of the judgment and the agreement as to the execution void.
    2. When a defendant is entitled to have an execution against himself quashed, he has also the right to have a garnishment based upon such execution also quashed.
    3. The limitation of time upon the right to have a judgment reinvestigated by writ of certiorari has no application to a petition for a supersedeas with a view to have an execution superseded and quashed where the judgment has been discharged.
    Baldwin & Campbell recovered a judgment against Merrill & Clark, partners, in the circuit court of Lincoln county for the sum of $198 64. This judgment was entered on the 8th day of February, 1839. . Clark & Merrill dissolved partnership, and Merrill bound himself to pay the debts of the concern and this debt amongst others, for which execution was issued by the attorney of plaintiffs on the 31st July, 1839, and was levied on the property of Clark. By agreement between the attorney (White) and Clark, Ciarle gave his note for the amount of the judgment with a surety for the payment thereof, Clark designing to enforce the judgment against Merrill for his own benefit. White agreed that he might do so, and no satisfaction of the judgment was entered, but no assignment of the judgment was made by White to Clark. Clark afterwards transferred the judgment to H. & B. Douglass. An execution was issued on the 25th day of October, 1843, and no property of Merrill being found, March was garnisheed. He was commanded to appear at the February term of the ■circuit court for Lincoln county in 1844. He failed to appear, and a ■judgment nisi was entered against him and a sci. fa. ordered. The sci. fa. was issued on the 28th March, 1844, returnable to the June term, 1844. It was renewed, and March failed to appear and a final judgment was rendered against him on the 11th June, 1844. On the 9th day of July a fi. fa. was sued out and on the 13th of August levied on a negro man. The sale of this slave was enjoined on the 30th September 1844, and the suit in chancery finally disposed of in December 1845.
    On the 7th day of May, 1846, Merrill filed his petition in the circuit court of Lincoln county, in which he stated the above facts and prayed that said execution mightbe superseded and quashed, and satisfaction of said judgment be entered on the ground that it had been previously paid and discharged. A motion to dismiss the petition was made at the first term, and overruled, and the cause stood over for further proceedings in the premises.
    The qp.se come on for trial at the June term, 1847, when the matter was submitted to a jury under the direction of Judge Marchbanks. He charged them as follows:
    “If Baldwin & Campbell put a claim in the hands of White to collect as an attorney, the doing of that act for such a purpose would constitute White their agent to collect the debt. If he obtained a judgment upon the claim it was competent for him to sue out an execution, collect and receive the money. If White had no other agency than the simple fact that the claim was put into his hands to collect, such authority would not authorize him to receive the note of Clark with security in payment, yet if he took the note of Clark in payment and the note was afterwards paid to the plaintiffs, or their agent, such a payment would be a satisfaction of the judgment and execution. If Clark & Merrill were partners, andas such owed a debt to the plaintiffs, and afterwards the partnership was dissolved and by the terms o.f the dissolution, Merrill was to pay the débts of the firm, under such a state of facts as these, it would have been competent for Clark, after the plaintiffs obtained their judgment against him and Merrill, by contract with the plaintiffs to have paid it off with a stipulation that he might have the control of the execution and to enforce it against Merrill. It would have been competent for Baldwin & Campbell to have made such a contract as this with Clark; so if White had been authorized by them to make such a contract or had a general agency from them, then it would have been competent for him to have made such a contract for them with Clark, and if made, and the amount of the execution was paid by Clark, then under the contract, the judgment and execution would not have been satisfied, and it would be competent for Clark to enforce the collection from Merrill. If White had no other authority from Baldwin & Campbell concerning the matter further than the simple fact that they put the claim in his hands to collect, such authority as this would be special and would' not make White their general ag%nt; and if he had no other authority than this he would not be authorized by it to make a special contract with Clark for the plaintiffs, authorizing him after the payment of the execution to enforce it against Merrill.”
    The jury rendered a verdict in favor of the defendant, and the court thereupon ordered that “the execution be quashed and that defendant be perpetually enjoined from proceeding on said judgment.”
    From this judgment the plaintiffs appealed.
    
      F. B. Fogg, for defendant.
    The writs of certiorari and supersedeas are resorted to in a case like this,'instead of a writ of audita querela. Peck, 362. 3 Yerger, 297. 4 do., 186.
    For authority to order a stay of execution until a subsequent term, or the further order of the court, reference is made to Smith vs. Page, 15th Johnson, 395. 10th Johnson, 4.
    The sheriff’s return upon the exertion issued 31st July, 1839, shows a levy upon the property of Clark. White proves this property sufficient to pay the debts, the judgment is therefore satisfied. 3 Yerger, 397, and other cases. As the judgment was satisfied by the levy, Merrill insists, it could not, as to him, be set on foot by the return of the property levied upon, any more than by a' return of money paid in discharge of the judgment. If there be judgment against principal and surety, the latter may pay off the judgment, and by contract with the creditor, enforce payment by issuing execution. Such contract must be made before the time at which the judgment is satisfied, not afterwards. This is not a case of principal and surety: Clark and Merrill are both principals. It may be contended, that although originally, both Clark and Merrill were principals, yet by subsequent contract Merrill was to pay this debt, it is substantially a case of principal and surety. Be this as it may, the proof shows that Clark has paid the judgment in money. The note taken by White was no payment, but the note was collected by White, who Raid the proceeds to, and took up his receipt from Martin, who had given White the claim for collection.
    There is no proof that Baldwin and Campbell agreed that the judgment might be held on foot, and its collection enforced in their names, by Clark against Merrill. White, their attorney, had no authority to make such contract. 1 Bacon, 489, letter D. 10 Johnson, 220. 7 Cowen, 739. 6 Humphreys, 62. Case of Hall against Bell et als. last term of this court. A sale upon execution upon a satisfied judgment is void, if the purchaser knew that the judgment was satisfied. Merritt against Bowen, 8th Coweri, 13.
    The court will grant summary relief in a case like this, upon motion; this practice has become universal, so as to render useless the writ of audita querela. The court will order a perpetual stay of execut^L, or that satisfaction be entered upon the record. 13 Common Law Library. Bingham on Executions, 264, and note 3. 6 Wendell, 562. 4 Johnson, 188. 7 Johnson, 426. 6 Humphreys, 210. If Clark has satisfied this judgment, he has his remedy by suit against Merrill, who can then set up any defence he may have to the action.
    The application for redress and the stay of execution upon . both judgments, comes properly from Merrill. He alone is aggrieved. The person garnisheed has no interest in the matter. He cannot, or may not know that the judgment was satisfied, or what defences the defendant in the execution could make. The garnishee will be protected in making payments upon the judgment against him. It is the business of the defendant in the execution to stay the proceedings, if the judgment is satisfied. The proceeding by garnishment is no new or original proceeding, .but is merely incidental process, to“'obtain satisfaction of the judgment. The funds of the defendant in the execution are impounded, seised, stopped and levied upon by this proceeding in the hands of the garnishee, and then as in the case in 3d Yerger, before cited, and others, where“property sufficient has been levied upon, or an execution has been paid off, and another is issued and levied, the last will be superseded and quashed. The defendant in the original execution, only can make ^Supplication whether his property is levied upon, or his ggJUPiee summoned; he being alone interested, as the garnishee cannot set up such de-fences; but if he could, the defendant also can do so.
    
      R. J. Meigs, for the plaintiffs.
    1. The motion to dismiss the certiorari and discharge the supersedeas ought to have been sustained.
    On the 7th of May, 1846, Merrill obtained the supersedeas of the execution of the 25th October, 1843, more than two years and six months after its issuance, proceedings being in progress all the time to make the money. See, Digest, 281. 4 Hum. 100-102. Dig. 279-5. Merrill could have availed himself of the matters of defence now alleged to supersede the execution against March, at the time of the issuance of the execution against himself on 'the 25th of October, 1844. His omission to do so, precludes the defence against the present execution. It being a general rule, that if a party do not avail himself of the opportunity of pleading matter in bar, much more, in abatement of an original action or writ, he cannot afterwards plead it, either in another action founded on the first, or on a scire facias. 1 Saund. 219c.
    2. The first part of the judge’s charge to the jury is perfectly correct, in which he states that Clark could, in his individual capacity, take an assignment of the judgment against his firm, there being a covenant with his partner, that the partner should pay that judgment. Story, Part. sec. 407,408. 'Harde-man vs. Burge, 10 Yerg. 202, a case which shows that the payment of money on an execution is either a satisfaction of it, or a purchase of the debt, according to the intent of the parties. A stranger may purchase a judgment,'and a partner in his individual capacity is as distinct from the firm, as a stranger is. *
    
      3. But the judge coMfflfended himself and the jury, in the latter part of his chaJP^pn which he entered into an abstract disquisition on the subject of agency. He told the jury, that an attorney at law, when entrusted with the collection of a debt, is not, as such, authorized to assign the judgment for the debt, so as to bind his clients. True, abstractly; but in this case, the client ratified what the attorney did, by acquiescing in what he did, and by receiving the money obtained by White for the assignment of the execution.
    Moreover — White did not exactly assign the execution, but engaged, that his clients would run the execution against the firm, and enforce satisfaction from them, in consideration that Clark would advance the money.
    This was lawful, and equitable, since Merrill admits that he had all the firm effects in his hands, under a covenant to pay the debts.
   McKinney, J.

delivered the opinion of the court.

On the 8th day of February, 1839, the plaintiffs recovered judgment against the defendant and John W. Clark, as part-ers for $198 64. Upon this judgment, execution issued on the 31st July 1839, and was levied on the property of Clark. Before sale, Clark, agreed with J. B. White, the attorney of plaintiffs, to execute his note with security for the amount of said judgment; and a note with security for the amount of said judgment was accordingly executed, which was accepted by White. Clark requested, that satisfaction of the judgment should not be entered, in order to enable him to collect the money from Merrill, the defendant, who was bound to pay the same.

White agreed not to enter satisfaction, and that Clark might enforce payment thereof from the defendant if he could, but, there is no evidence, that he made any assignment of the judgment to Clark.

The note of Clark was collected by White, and paid over to the plaintiffs in satisfaction of their judgment. Clark after-wards transfered said judgment to H. &. B. Douglass, and execution issued thereon on the 25th October, 1843, on which John March, who was indebted to Merrill, was garnisheed, and, on the 11th day of June, 1844, a final judgment was rendered against said March, in .favor of the plaintiff for $261 81. Upon this judgment, execution issued, and was levied on the property of March. The defendant filed this petition to have said execution superseded, and also, the former execution issued on the 25th October, 1843. An issue of fact, was submitted to a jury in the circuit court, who found the judgment satisfied, and a new trial being refused, the plaintiffs appealed in error to this court.

We think, there is no error in this record. It is true, that White, as the attorney of the plaintiffs, has no authority, as such, to receive a note from Clark, or any thing but money, in satisfaction of the judgment, still, the note having been collected, and the money paid over to the plaintiffs, without objection on their part, this amounted to a satisfaction and ex-tinguishment of the judgment, and no execution could after-wards issue thereon. White, as the attorney of the plaintiffs, had no authority to transfer the judgment or to agree that execution might issue thereon, for the benefit of said Clark, unless empowered by them to do so. • And, the mere fact of their receiving the money could not be regarded as an approval or ratification of the act of White in transferring the judgment.

We are also of opinion, that the defendant, may properly apply to have the execution against the garnishee superseded, and quashed. He is the only person to be injured; the garnishee has no interest in the matter, as the judgment would be a sufficient protection for him, nor will the omission of the. defendant to have the execution issued against himself, on the 25th of October 1845, superseded, preclude him from now mailing his defence against the execution issued on the judgment rendered against the garnishee: neither is the defendant to be defeated of his remedy by the delay in this case. The principle applicable to the writ of certiorari, when sought to be used as a substitute for an appeal, has no application, when it is substituted for the writ of audita querela, a remedy obsolete in this state.

The judgment of the circuit court will be affirmed.  