p. 114Headnote
By the first aet^ísess. 's£. ticeS°ófa 'the peace may rant1 on "the plaintiff1 himseit; in the cases provided for by the 4th act. (Sess. 3i.of Mro-um v. Jittic/vtiiujif Johns. Hep. 75.) is, therefore, not law.
c£rkS to* a merchant, ^ thorize the notes'^iy °the name of his principal.
IN ERROR, on certiorari, from a justice’s court. Fargo sued Terry, before the justice, by a warrant, which was granted 011 th® oath of the plaintiff. The plaintiff declared on a note, signed for the defendant, by one Barker, as his attorney/ The defendant denied the note, and that Barker had any authority to make it. Barker was produced as a witness, and was objected to foy the defendant. He was then sworn on his voire dire, and admit- J ted. He stated that he was empowered to act as clerk of the defondant, and gave the note for property which the defendant had from the plaintiff, and on which the defendant made a great advance. On this evidence, the justice gave judgment for the plaintiff.
The return of the justice is very brief as to the merits of the cause disclosed at the trial. There were no regular pleadings. The plaintiff below produced a note, purporting to have been signed for the defendant by one Barker, as his attorney. Barker was offered as a witness, and objected to, and then examined on his voire dire, and admitted. We are to infer from the record, that this examination was by consent, and that
p. 115the objection, even k it had been other-wise available, was then abandoned. He testified, that while acting as clerk for Terry, he gave the note. This alone was not sufficient to authorize him to ~~ign notes in the name of his principal. But he testified, that the note was given for property that Terry received and turned to great advantage; and the defendant was, consequently, responsible for the goods so received, in an action of assurnpsil, even if he was not liable upon the note, and we are to intend that the plain~ tiW's declaration equally embraced the demand in this shape~
The point on which reliance seems to be placed is, that the plaintiff below obtained a warrant, upon his own oath, and the court, in the case of Brown v. Hinchman, ( 9 Johns. Rep. 75 .) considered that the oath of the party was not the proof intended and required under the 4th section of the act of 1808. .The court, in pronouncing the judgment, in that case, did not advert to an amendment to that section which was made by the legislature, in a subsequent session, (sess. 32. c. 186.) and which expressly allows the party applying for the warrant to be examined on oath. The decision, therefore, being founded upon the act of 1808, without recollecting the amendment, in the act of 1809, is not to be regarded as authority, and the judgment below must be affirmed.
Judgment affirmed.