Campbell v. Bristol — 19 Wend. 101

Majority

p. 101

Campbell vs. Bristol.

ALBANY,

Feb. 1838.

Headnote

Where a suit is prosecuted in the name of the plaintiff without authority and judgment is obtained against him and execution issued, the execution will be set aside and a perpetual stay granted, if the attorney be insolvent.

Attorney appearing without authority. A motion was made in this case to set aside an execution, and for a perpe

p. 102

tual stay. An action of replevin was prosecuted by an attorney of this court in the name of the plaintiff without his authority; and judgment having been rendered for the defendant, an execution for the damages and costs was issued against the plaintiff and levied upon his property, which was the first notice he had of the suit. T'he attorney who prosecuted the suit was shown to be insolvent.

By the Court,

The suit was prosecuted without authority, and the attorney is insolvent. The plaintiff must be relieved. 6 Wendell, 514. Let an order be entered that the execution be set aside, and all proceedings against the plaintiff be perpetually stayed, on his stipulating not to bring any action.

Order accordingly.