Lagow v. Patterson

Holman, J.

After a verdict in favour of Patterson against Lagow, Hay, Parke, and Ewing, a motion was made in arrest of judgment, because the capias had not been executed on Lagow and Parke; which motion was overruled by the Circuit Court.

The defendants were charged as partners. One of the regular attorneys, practising in the Circuit Court, appeared for them and pleaded in bar of the action in a plea entitled Lagow et al. fyc. A regular defence was made through.all the proceedings, and the names of all the defendants frequently appear in the record as being before the Court. No suggestion is made that the attorney had no authority to appear for all the defendants, nor is there any doubt but that this attorney, together with two others who were afterwards engaged in the defence, must have kirawn that they were considered as acting for all the defendants ; and that they must have so’ considered themselves. That such was the fact is incontrovertible, inasmuch as the liability of all the defendants as partners was in proof before the jury, and was a subject considerably agitated on the trial, as appears by a bill of exceptions. We think, under these circumstances, the Circuit Court acted correctly in overruling the motion. We feel supported in this decision both by principle and precedent. The case of Hills et al. v. Ross, 3 Dall. 331 , is an au *328 thorityi'n point. But the case of Denton v. Moyes, 6 Johns. R. 296, and those'cited by Ch. Justice Kent in delivering the opinion in that case, go much further. Van Mess, J., it is true, dissented; but neither his reasons, nor the authorities cited by him, can be brought to bear against the present case. Here the defendants who were not served with process, do not complain of injustice or surprise. They do not pretend that the attorney' who appeared in their behalf, was unauthorized to do so; thereby giving weight to the presumption, that he'acted with their knowledge and by their authority. We believe, from examination, that there is no case to be found, where a Court has set aside its proceedings upon a bare suggestion, that the attorney for either party had acted without authority. But here there is not. even this suggestion; and the absence of it is conclusive evidence, that it could not be made with propriety. The record does not tell us by whom this motion was made; but the presumption is, that it was made either by the defendants themselves, or some of the attorneys who had defended the case; and their entire silence on the subject shows,unquestionably, thatthey had no ground on which to dispute the attorney’s authority.

Tabbs, for the plaintiffs. Judah, for the defendant.

Another question is raised. Notice to the defendants to pro? duce certain papers, relative to their partnership and transactions as partners, was served on one of their attorneys; and it became a question whether this notice was sufficient, on a failure to produce the papers, to let in parol evidence of the existence or contents of those papers. The Court admitted the evidence, and we think it was correct. Notice given to the attorney at law was sufficient. 1 Phill. Ev. 338.

Per Curiam.

The judgment is affirmed, with one per cent, damages and costs.