Foster v. Dow

Wells, J. The witness, Farris, was the person, in whose [446] name the defendant brought the action against the plaintiff, without any authority derived from the witness. He could neither gain or lose by the result of the suit, and the verdict would not be evidence for or against him. The affidavit of the plaintiff in relation to the loss of the license contains sufficient facts to show a loss, and to admit the secondary proof. The original writ of Farris v. Foster, having been lost, and the return of the arrest upon it, parol proof of the arrest was admissible. And the commitment was an act done by the officer in pursuance of the writ, and may be proved in the same manner as any other fact. Whether the jailer made a record of the commitment or not, his reception and confinement of the prisoner, was a commitment. This action is not brought for a malicious prosecution, in suing out a writ, without probable cause, but for commencing an action without the authority of Farris, and in his name, against the plaintiff. And the construction given to the writ, at the trial, appears to be free from objection. The acts and doings of the attorney, who had the care of the suit of Farris against the plaintiff, in suing Farris for his services and obtaining judgment by default and execution against him, could have no effect upon the rights of the plaintiff. They were res inter alios. If Farris had notice of the suit, they might affect him, by way of admission. But if he gave no authority for instituting the action against the plaintiff, nor in any manner ratified it, his subsequent admissions could not be received to prejudice the plaintiff. The testimony offered was properly rejected. The validity of the license did not depend upon the recording of it, nor upon the recording of the order of the County Commissioners granting it. A person having a license to peddle, legally obtained, would not be liable to a penalty for not having one, because the County Commissioners had omitted to complete their records. It is their duty, to cause a record of their proceedings to be kept; chap. 99,$ 9 and 10 of the [447] Revised Statutes; but there is no law requiring the license itself to be recorded at length. The license, which the plaintiff had, was granted July 10, 1846, under the act of 1843, c. 27, and by the provisions of that act, it continued in force for one year. The action brought against the plaintiff by the defendant, in the name of Farris, for peddling without a license, was commenced June 8, 1847. The act of 1846, c. 200, which took effect on the first day of October of that year, repealed the act of 1843, and it is contended, that the license of the plaintiff was thereby annulled, and that he was peddling without a license on the eighth day of June, 1847. But although the act of 1846 repeals that of 1843, it does not by any provision in it, vacate the unexpired licenses, granted by virtue of the latter act. Nor is it inferable, that such was the intention of the Legislature. A prosecution for a penalty cannot be sustained, after a law is repealed, without any saving clause, yet a right obtained under a statute may exist after its repeal. But the law of 1846 does not require the license to be obtained under that act. It enacts that the person, who travels to vend goods, “ shall first obtain a license therefor, from the County Commissioners,” &c. And the plaintiff had obtained a license in conformity to the act of 1846, although it was granted under that of 1843. The duty required to be paid is the same in both acts. The plaintiff had such a license as was required by the act of 1846, and it was therefore valid, though obtained under a law, which had been repealed. The objection to the instruction, that the plaintiff was bound to exhibit his license to Farris and to the defendant, is without foundation, neither of them being a justice of the peace, or constable of any city, town or plantation. To such persons only does the law require it to be exhibited. It may not be inappropriate to remark, that the license and. the questions raised in relation to it, are entirely irrelevant. [448] Whether the plaintiff had a valid license or not, would furnish no foundation for a suit against him, by the defendant, in the name of Farris, without his consent. The use of the name of Farris, under such circumstances, was an unlawful act, and the plaintiff is entitled to recover the damages arising from it. Where one commences a suit in the name of another, but without his authority, it is a groundless suit, irrespective of its merits if it had been legitimately brought. If it could have been maintained by the person having a right to bring it, that circumstance would afford no reason for lessening the actual damages sustained, and if it could not, no reason for enhancing them. No objection was made to the testimony for its irrelevancy. But assuming it to be relevant, no error is perceived in the rulings concerning it, nor in the instructions given or withheld. The exceptions are overruled.