Crary v. Turner — 6 Johns. 51

Majority

p. 51

Crary and Morgan against Turner, Sheriff, &c.

NEW-YORK,

May, 1809.

Headnote

The authorityageutPefo°n’the plaintiff, to discharge a detenuant *rom cu.sLo~ dy on execution, without satisfacmust be clearly edf an^stvicüy

vujfetiiei- the attorney of the plaintiff on record,. has power to discharge a defendant from custody, on ex» ecution, or acknowledge satisfaction, without payment of the flCleht, dubitatur.

THIS was an action of debt, for an escape. The cause was tried at the Rensselqer circuit, in 1809, before Mr. Justice Van Ness. • J

At the trial, the plaintiffs produced the record of a 1 judgment against one Arnold, and the ca. sa. issued thereon, with the return thereon, by the defendant, of cepi corpus in custodia. •

The defendant admitted that Arnold, after he was in custody, and before the commencement of the suit, went beyond the liberties of the gaol; but relied on the defence, that one Daniel Wilcox, the agent of the plaintiff, consented to the escape of Arnold, and was authorized to give such consent.

It was proved, that Wilcox had the management of some part of the unsettled accounts of the plaintiffs, who were merchants at. Hosick, where Arnold livedbut the plaintiffs had removed into Oneida county. Wilcox procured the issuing of the writ against Arnold; and Jeremiah Osborn was the attorney for the plaintiff on record.'

A witness for the defendant testified, that at a conversation between Crary, one of the plaintiffs, and Harper Rogers5 who was bail for Arnold, for the liber

p. 52

ties of the gaol, Crary said he was informed of the judgment against Arnold, by a letter from Wilcox; and that Wilcox had done the best to collect his debts of any person he had employed.

It was also proved, that in a conversation between Arnold and Wilcox, before the escape, Wilcox told Arnold that he might go home, if he would give security j that at another time Wilcox and Arnold talked about a compromise, and Arnold gave Wilcox some obligations, or notes, and said if he could go home he would obtain more; and Wilcox told him, that if he went home no advantage should be taken of his bail, and that he might go home ; and Arnold afterwards left the liberties, and went home.

David Wilcox, who was called as a witness for the plaintiff, testified, that he was never an agent for the plaintiffs, but only of Crary, who gave him a power of attorney, which was confined to the collection of debts, injustices’ courts ; that he never did any acts as agent for the plaintiffs; that by the desire of Crary, he requested-the attorney to issue the writ against Arnold; that he met Arnold in Troy, who told him that he was going home, and that he would have gone, if the witness had not met him.

Further evidence was also offered by the defendant of the acts of Wilcox, in order to show his agency for the plaintiffs.

The judge charged the jury, that the plaintiff was entitled to recover; that admitting Wilcox was the agent for the plaintiffs, he had no authority to discharge Arnold from custody, without receiving the amount of the judgment, or security; that three of the witnesses proved an escape before the alleged compromise, though after the license, as stated by another witness ; that the plaintiff, on this evidence, would be entitled to recover; that if Wilcox had been guilty of any fraud in procuring the escape of Arnold, it could not

p. 53

affect the right of the plaintiffs to recover, unless they were privy to the fraud, of which there was no evidence. The jury, accordingly, found a verdict for the plaintiffs.

A motion was made for a new trial, for the misdirection of the judge.

Foot, for the defendant.

y. Russel, for the plaintiffs.

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.