Fitzpatrick v. Neal.

Decided July 5, 1797

Decided 1797-07-05

¶1For the reasons given at the bar, I am of opinion the authority given by this letter is insufficient.

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Posture: DUNCAN was elected by letter from Fitzpatrick to cause Neal to be arrested for a debt due to him, should he arrive at Wilmington. Neal was arrested accordingly, and imprisoned; and now Neal, being (9) brought up as upon a habeas corpus , moved by his counsel to be discharged because Duncan had not a letter of attorney under seal. The counsel argued that every letter of attorney for the purpose of causing an arrest, or recovering a debt or the like, should be under seal, in order that he who gives the power may be estopped to say he did not give it, and so charge the defendant again, as he might do if the attorney or agent acted without proper authority; and in a case like the present, where a suit is carried on in the name of the principal, the power should be filed among the records of the court, and should be duly authenticated; otherwise, a bar or recovery in this action could not be effectually pleaded against a new action for the same cause. The principal might say he gave no power to commence any such action as the former, which if true would avoid the plea. The principal could not be bound by his acts, for otherwise debtors might come here and cause themselves to be sued by their friends and have a judgment of the court in their favor and become discharged of their just debts. And to prove that letters of attorney should be under seal, they cited Coke Litt., 52; 1 Ba. Ab., 198; 2 Roll. Ab., 8.