Hart v. Waterhouse

1 Mass. 324

• Court: Massachusetts Supreme Judicial Court
• Decided: May 15, 1805
• Status: Published

Opinion

Thacher, J.,

said he continued of the same opinion he had at the trial; that there was then no evidence offered that Sherburne was the attorney of the plaintiff, excepting what appeared from the endorsement itself; which he then and yet thought was no evidence at all of that fact.

Sewall, J.

I am clearly of opinion that the paper was rightly rejected; because there was no evidence offered that Sherburne was the attorney of the plaintiff. Had that been proved, it would have been one step towards proving the issue; but the endorsement on the execution, in itself, amounts to nothing.

Sedgwick, J.

There was no other evidence offered than what appeared in the paper itself that Sherburne was the attorney. This certainly was not evidence; for it is merely the declaration of the person who calls himself the attorney. The execution being in the hands of the defendant, it was incumbent on him to show that he was legally entitled to the possession of it: this he did not do; nor would he have a right to retain it in his hands unless Sherburne was the attorney of the plaintiff, and unless also the notes had been paid. If the authority of the agent be admitted, yet the notes were taken conditionally: they were, if paid, to be a satisfaction of the judg ment; and it has not been suggested that the notes were paid. In every point of view the direction of the judge was right, and, therefore, the verdict must stand.

P. Mellen for the plaintiff. Emery and Holmes for the defendant.

New trial refused.