Peck v. Acker

20 Wend. 605

• Court: New York Supreme Court
• Decided: June 15, 1839
• Status: Published

Opinion

By the Court, Nelson, C. J.

We are inclined to think the sheriff should be allowed to retain the attorney. Notwithstanding the indemnity, he is still interested in the management of the defence, both as to the amount in controversy and the time when it shall terminate. . A protracted litigation may increase the contingencies as to8the ultimate sufficiency of the security, and am omission properly to defend may swell the recovery far beyond the amount contemplated when the surety was taken." As a general rule the party to the record, and immediately liable for the result of the litigation, should control the attorneyto create an exception, the circumstances should be very strong. If the sheriff should conduct the defence improperly and by reason, thereof a recovery be had against him, the indemnitor can avail himself of such improper conduct in the action against him. Upon the whole, the sheriff should always be permitted in cases-like this to take upon himself the conduct of the defence, and to retain such person as attorney as he sees fit.

Motion denied'.