Terry v. Fargo

10 Johns. 114 | N.Y. Sup. Ct. | 1813

Per Curiam.

The return of the justice is very brief as to the merits of the cause disclosed at the trial. There were no regular pleadings. The plaintiff below produced a note, purporting to have been signed for the defendant by one Barker, as his attorney. Barker was offered as a witness, and objected to, and then examined on his voire dire, and admitted. We are to infer from the record, that this examination was by consent, and that the objection, even k it had been other-wise available, was then abandoned. He testified, that while acting as clerk for Terry, he gave the note. This alone was not sufficient to authorize him to ~~ign notes in the name of his principal. But he testified, that the note was given for property that Terry received and turned to great advantage; and the defendant was, consequently, responsible for the goods so received, in an action of assurnpsil, even if he was not liable upon the note, and we are to intend that the plain~ tiW's declaration equally embraced the demand in this shape~

The point on which reliance seems to be placed is, that the plaintiff below obtained a warrant, upon his own oath, and the court, in the case of Brown v. Hinchman, (9 Johns. Rep. 75.) considered that the oath of the party was not the proof intended and required under the 4th section of the act of 1808. .The court, in pronouncing the judgment, in that case, did not advert to an amendment to that section which was made by the legislature, in a subsequent session, (sess. 32. c. 186.) and which expressly allows the party applying for the warrant to be examined on oath. The decision, therefore, being founded upon the act of 1808, without recollecting the amendment, in the act of 1809, is not to be regarded as authority, and the judgment below must be affirmed.

Judgment affirmed.