Fairbanks v. Stanley

The opinion of the Court was drawn up by Shepley J. The case finds, that “ the plaintiffs’ attorney had a general authority from the plaintiffs to act for them and to commence such suits, as he might think for their interest.” The authority appears to be sufficiently extensive, and it is not perceived, that the plaintifls would be at liberty to deny it; or that they could be excused from answering in damages for making the attachment, if there had been no sufficient justification for commencing the suit. When one institutes a suit, he may set forth his cause of action in any manner which the law allows; and if he does so, and is enabled without amendment to maintain it, the law will not deprive him of any right, because he has adopted one mode of declaring in preference to another. It does not hold out to him the right of election and then punish him for the exercise of that right. Property can be attached only to secure the demands sued, and' if other demands are afterward introduced, the attachment will not be good against subsequent attaching creditors. When the writ contains the money counts there may be difficulty in determining what demands were put in suit. Those which the plaintiff" then owned, and which were due and payable and liable to be introduced without amendments, and which were so introduced, and judgment obtained upon them, cannot be regarded in the absence of all contradictory proof as not in suit, without depriving the party of his election as to the mode of declaring. The statute of 1838. c. 344, requiring all liens on real estate created by attachment and the amount of them to appear on record, made it necessary to deprive the party of the right to prove under the money counts any demand not specifically designated. The effect was to restrict the party to a certain definite mode of declaring or to limit his proof. This the legislature might properly do, while the Court could not, unless by a previously established general rule regulating the mode of declaring. The suit against the debtors appears to have been instituted by the plaintiffs’ attorney to secure any debt due to them in what [303] ever form it might exist. A note over due and unpaid would come within the demands contemplated to be secured. The case of Payson v. Whitcomb, 15 Pick. 212, shews that although given for goods purchased it might be introduced in evidence under the money count. The cases of Willis v. Crooker, 1. Pick. 203, and Fairfield v. Baldwin, 12 Pick. 388, decide that where new counts are introduced, they will be regarded as introducing new causes of action, unless they appear to be for the same cause. And the remarks in the latter case respecting the propriety of designating by a bill of particulars annexed the bills or notes to be offered in evidence under the money counts, appear to refer to the necessity of doing so, when new counts are to be introduced, that the record may shew, that the new counts are for the same cause of action. None of the cases cited decide, that an attachment would be considered as vacated by proving a promissory note under a money count originally inserted in the writ. The second count in the writ against the defendant appears to be sufficient to enable the plaintiffs to recover. The officer cannot defend himself by shewing, that he sold and parted with the possession of the goods without their consent. They were entitled to regard him as holding them to satisfy their execution; and they are entitled to recover the amount due upon it.