Smith v. Goodrich

5 Johns. 353

Opinion

Per Curiam.

Several points were made by the plaintiff in error j but it is sufficient to notice one only*. The Qourt have decided, again and again, that if the parties below appear by attorney, though it be by consent, it is error. The statute (10 sess. c. 10. § 10.) is peremptory, and cannot be eluded or set aside, by any consent or collusion between the parties. But if the plaintiff in error only appear by attorney, he shall not be allowed to take advantage of his own act, to defeat the recovery below. This would be against a well settled principle of law, as well as a flagrant injustice. The judgment below must be reversed.

Judgment reversed.

(a)

The same point arose in several other causes before the court, on certiorari, during this term, in which the same decision was given.