Crary v. Turner

6 Johns. 51

• Court: New York Supreme Court
• Decided: May 15, 1809
• Status: Published

Opinion

Per Curiam.

The motion for a new trial is denied. There is no evidence, that Wilcox was authorized to discharge Arnold from the execution, or that the plaintiffs ever ratified that act of Wilcox. The evidence of his agency in the conduct of the suit was loose; and we ought to have clear and decisive evidence of the authority, before we conclude a party by such a high-handed measure, as the discharge of his debt by a third person, without satisfaction. It is a doubtful point, in the books, whether even such an act would be binding upon the plaintiff, if done by the regular attorney on record, to whom the law necessarily confides a pretty enlarged discretion and control over the súit. (1 Roll. Abr. 291. M. pl. 2. pl. 5. and Payne v. Chute, 1 Roll. Rep. 365.) But in a special agent, the authority must be well ascertained, and strictly pursued.

The escape being admitted, there was nothing shown to justify it; the verdict is agreeable to the evidence, and the charge of the judge, in all respects, correct.

Judgment for the plaintiffs.