Tichout v. Cilley

Hutchinson, C. J., pronounced the opinion of the Court.— The objection urged by the plaintifl’s counsel, that the sale of the note should not be proved by parol testimony, seems hardly to arise in the case ; for it no where appears, that there was any writing upon the subject. There might be a valid sale without any writing, and such sale might well be proved by parol. The other objection, urged to this testimony, is more important. It seems, the defendant was permitted to show a sale of the note to Taylor and Prentiss before the action was brought upon it in his name; and by such showing obtained a verdict. The authorities adduced are in point against this decision. Some of them even go so far, as to decide, that a man is liable for an injury, resulting from a suit commenced in his name by an attorney without any employment from him, and without his knowledge or consent. In such case, if judgement is rendered against him the execution will come against him for the cost, and he may be obliged to pay it, and seek his plain remedy upon the person using his name without any authority from him. But, if any action were brought against him for any other damages, resulting from such unauthorized suit, I doubt the right to recover without showing his consent to the suit, either expressed or implied. But we have no such case now before us. diley, the present defendant, had a note against Tichout, the present plaintiff. He sold this note to Messrs. Taylor and Prentiss. This, without more, authorized them to use his name for the collection of the note. He might take care to secure himself from harm at the time of his sale. He might even require an indemnifying bond. II he has not done it, he has concluded to run the risk of their so proceeding as not to subject him to injury. Whereas, if such a sale of a note would throw the responsibility off of the plaintiff, it might often place it where there would be no responsibility to make good the party injured. But when this sale was made, Cilley, not only impliedly, by the sale, authorized a suit in his name, but expressly stipulated, that his accountability, to Messrs. Taylor and Prentiss, should depend upon their having prosecuted the signer of the note, and his having sworn out of jail. The suit was not only in the name of dlley, but was commen420 ^or ^‘s : an^ his knowledge of it, while progressing, is made manifest by his receiving notice and sending an agent to turn out property. The truth is, if a wrong has been done, all concerned in it are liable to the party injured j and there is record proof, that the defendant was concerned in it. Both parties have proceeded upon the ground, that this execution, by running only sixty days, as it well might, if it were a few dollars less in amount, is absolutely void. We are under no necessity of giving, or forming, any opinion upon this point, while the counsel do not choose to litigate it; but we entertain some doubt whether it ought to be treated as a nullity, till set aside by some regular process. Perhaps the parties feel no wish to raise this quection. It may be of no use j for the execution, when set aside, would cease to avail the party justifying tinder it. On account of the admission of the testimony offered in the defence, and the instructions given to the jury,, the judgement is reversed and a new trial is granted, Royce, J., not being present at the argument, or when the judgement was pronounced, took no part in this decision.