Moore v. Cohen.Moore v. Cohen.
Tbis is аn action by tbe plaintiff for malicious prosecution by illegally causing tbe arrest of plaintiff in a former action in wbicb tbe present defendant was one of tbe plaintiffs, and оbtained judgment against tbe present plaintiff, wbo was one of the defendants.
It was admitted by bоth parties that tbe claim on wbicb tbe judgment was rendered was sent by Coben & Son, of wbicb firm defendant is senior partner, to R. B. Peebles, attorney-at-law, for collection, with no spеcific instruction as to collection, аnd in tbe usual course of business for collection; that before sending it Coben & Son bad learned that the firm of J. S. & J. E. Moore bad made an assignment; that tbe defendant had no knowledge of tbe arrest of J. E. Moore, or of tbe action before tbe Justice оf tbe Peace, or cf tbe order of аrrest, or any other proceeding in said аction, or of tbe acts of Messrs. Peebles and Harris (counsel in said action for Cobеn & Son) until years thereafter when tbe presеnt action was begun, and that tbe defendant never authorized or ratified said arrest unless tbe sending tbe claim to' R. B. Peebles for collеction as aforesaid amounted to authorization. ■
Tbe plaintiff contended that tbe acts of tbe attorney were the acts of the defendant, though done without his knowledge or express authority, and that the defendаnt was responsible for them, and in writing asked the Court to instruct the jury, that upon tbe whole evidence, if believed, to answer tbe first issue “Yes.” Tbe Court declined tbis request, and held, as a matter of law, that upon tbe evidence tbe plаintiff was not entitled to recover, and that tbе issue should be answered “No,” and directed a verdict accordingly.
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It is true that a client is bound by the acts of bis counsel in tbe ordinary course of procedure and in matters pertaining to that action, sueb as judgments, decrees and orders therein, but “a plaintiff is not resрonsible for any illegal action taken or directed by tbe attorney wbicb tbe plaintiff did nоt advise, consent to or participаte in, and wbicb was not justified by any authority be bad givеn.” Cooley on Torts, 131. This is fully sustained by tbe authorities сited in tbe note and other cases.
Fox v. Stone,
No error.