Davis v. Waterman & Noyes

The opinion of the Court was delivered by Collamer, J. The question, in this case, entirely depends on the extent of the power of the clerk of Waterman & Noyes, under the circumstances, then existing. That the clerks, in our country stores, with whom are left the goods and demands of our merchants, have charge of both, and, in the absence of the principals, have power to receive pay on the demands, and to institute suits for their security, where an emergency arises, there can be no doubt, and it is conceded in this case. It is generally done. It was done by the clerk in this case, and was ratified and approved by his employers, who took the avails. But it is insisted, that the clerk could not go further, and employ an attorney to defeat the previous fraudulent attachment. But this latter power is absolutely necessary, as an incident of the former, or the former power, existing for the security and advantage of the merchant would, frequently, be of no avail. Were a fraudulent attachment or sale of a debtor’s goods, made in the absence of the merchant creditor, as in this case, and the parties to such sale were, with the goods, leaving the state, an immediate attachment is ne- ' cessarily made by the clerk. Now, a suit may be brought by these persons, against the attaching officer, and the whole case be determined before the merchant could return from an ordinary journey to market. Most clearly the clerk might have power to employ counsel to defend the merchant’s rights, in such case, and to render effectual the attachment which, it is granted, he has power to make. It would otherwise be useless. If the clerk may employ counsel, he may join others, who have a common interest in so doing. If he may defend the merchant’s rights in his absence, in relation to the demands left with him, he may do so in any legal inanner his discretion may dictate. In this case he joined others in employing the plaintiff, as an attorney, to defeat the first fraudulent attachment, and thus secured his. [529] employers’ debt. And to render effectual the attachment he had made thereon,he judged it better so to do, at the common expense of all the defendants, than to leave his employers to contest a doubtful suit, alone. He judged rightly. It sueceeded, and his employers, on their return, did not repudiate the attachment he made, but pocketed the fruits of the en» terprize, and should pay the expenses which attended it. Judgment affirmed»