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officer of Court, he is himself responsible to the person for whom he appears and the opposite party is in no fault, and has no adequate means of ascertaining the authority of the attorney, he ought not to be delayed or injured by the unauthorized act of such attorney, if he is of sufficient ability to respond in damages to the person for whom he undertook to appear. This reasoning is certainly plausible, and worthy of some consideration, but does not furnish any sufficient ground why one of the most obvious and well settled principles of law, as well as justice, should be departed from. That no person is to be bound by the act of a stranger, in whom he has vested no authority, or reposed any confidence, and over whom he can exercise no control. The admission and oath of an attorney is for the safety and advantage of a suitor, but does not of itself authorize him to appear in any cause. His authority to appear is essentially derived from the party, and dependant on him for its continuance; and although it is not the practice of our courts, in ordinary cases, to require the attorney to produce either a warrant or other authority from the suitor, before he is permitted to appear, yet its production may be, and, under certain circumstances, undoubtedly would be, required by the court. Courts act on the presumption that the attorney is authorized by the party, and it is in virtue of this authority that he is permitted to appear and prosecute, or defend, not merely because he is an officer of Court, admitted by them, and sworn to discharge his duty.

There are many officers, in our country, admitted to act as such, and sworn to a faithful discharge of their duties, by public authority, who derive their The power, in each particular case, from the individual for whom they act. office of an auctioneer is of this kind. They are appointed, commissioned, and sworn, by the officers of government, and no one will pretend that they could sell or transfer the property of an individual, without or against his consent, and yet any argument derived from considerations of public policy or convenience, in favor of considering the acts of an unauthorized attorney conclusive upon the suitor, applies with equal force, in so considering the acts of an unauthorized auctioneer, upon the persons interested.

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The mischief that might follow, from holding that the acts of the unauthorized attorney are conclusive for whom he appears, would induce the person Court to hesitate long before they would establish such a rule. It would, in some degree, subject the property of every individual, in the community, to the mistakes or malice of a particular class of men.

If the doctrine contended for by the defendant was now fully recognized by the English courts,—and it appears from the cases cited to have been at one time, it could not long have remained a rule of decision, as we find a number of cases, in their reports, where parties have obtained relief against the acts of In the case of Robson v. Eaton, (1 Term. Rep. 62.) unauthorized attornies. Lord Mansfield expressly states the doctrine, that a party to a suit is not bound by the act of an attorney not employed by him; and decided, that when, as in that case, the defendant had paid money to the attorney, who had brought a former suit, and appeared for the plaintiff, he was liable to pay it over again, if it appeared the attorney was not employed by the plaintiff. In Denton v. Noyes (6 John. Rep. 298.) the Supreme Court of New York held, that judgment obtained against the defendant not served with process, in consequence of the ap

pearance of an unauthorized attorney, was not conclusive upon the defendant; and the proceedings were reversed, and he was permitted to make defence.

Whatever formerly might have been the rule of the English courts, their practice would now seem to be, not to consider the act of an attorney conclusively binding, unless he is employed by the person for whom he appears, (3 Shaw Rep. 166 Archb. Plead.) and the decisions of the Courts in the United States, when the point has been made, has been in accordance with such prac. tice, so far as they have fallen under my observation. Plaintiff's may sometimes suffer inconvenience by the appearance of an unauthorized attorney for the defendant; but courts, to avoid this evil, ought not to run into the opposite extreme of subjecting the interest and rights of such defendant, to the uncontroled acts of a stranger, neither employed nor trusted by him. In affording a remedy to a defendant so situated, courts will be careful to protect the plaintiff in any right he may have acquired, and interfere only so far with the judgment or other proceedings, as may be necessary to afford the defendant an opportunity of making defence.

The second ground of demurrer to this bill is, that whatever relief the complainant is entitled to, should have been sought in the court rendering the judg ment, and not in Chancery.

It is an unquestioned principle, that a Court of Equity will not interfere, when the party secking their aid can have the same relief in law as in equity; and the court are of opinion, that this principle applies to, and must govern this

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There is nothing in the bill shewing that the complainant could not obtain the same relief, upon motion to the court rendering the judgment, that he now seeks by his bill in equity. The ground taken in the bill for the interference of a court of equity is, that the complainant was not served with process in the suit at law, and that an attorney of the court, without his knowledge, or any authority from him, appeared for him, pleaded and went to trial; whereupon a verdict and judgment was obtained against him. There is no pretence of any fraud or collusion on the part of the defendant, the plaintiff at law, that he had any knowledge of the attorney's not being authorized, or that the trial, on his part, was not fairly and properly conducted. If, upon these facts being shown to the Court rendering the judgment, they were competent to set it aside or sus pend it, and let the complainant, the defendant at law, in to make defencehe had complete and adequate remedy at law, and Chancery will not entertain jurisdiction. And this Court does not doubt but that it was fully competent for the court at law to afford the complainant, upon motion, all the relief he could obtain in a court of equity. The jurisdiction of Courts of law, in setting aside judgments improperly obtained, or suspending their operation for a time, has been too long exercised, is too reasonable in itself, and attended with too many beneficial effects, to be now seriously questioned. It has become one of the regular, plain and accustomed remedies of a court of law, to afford full and adequate relief against a judgment irregularly or improperly obtained when there has been no fault or negligence on the part of the judgment debtor. In the case of Denton v. Noyes, before cited, the Supreme Court of New York, in a case very similar in its principal features to the one now under consideration, suspended, on motion, the operation of the judgment, and permitted

the defendant to plead, leaving the judgment to stand as a security for the plaintiff, in case he should upon a future trial obtain a verdict. They proceeded upon the principle, that now almost uniformly governs courts in giving relief in cases of this kind, that of doing right and justice between the partics. The relief which is now given by Courts of law, upon motion, is equitable in its char. acter, extended upon equitable terms, and so framed as to protect the rights of one party, without sacrificing, or jeopardizing those of the other. It may be af forded in the Court rendering the judgment with more facility, and more ccrtainty of doing justice, than in a distinct tribunal, and the party injured can then obtain all the relief he is justly entitled to, without subjecting the other party, against whom there is no complaint, but having, as he supposed, in due course of law, obtained a judgment in his favor, to the delay and expense of a chancery proceeding. There may be cases where, from the fraud or collusion of the party obtaining the judgment, or from peculiar circumstances, it may be proper that a Court of equity should entertain jurisdiction and afford relief, but there is nothing in this bill showing that the complainant has not complete remedy at law, by application to the Court rendering the judgment.

It has been contended, by the counsel for the complainact, that the principles recognized, by this Court, in the case of Atkinson v. Commissioners of Picka· way county, (1 Ohio Rep. 375,) would prohibit the court of Common Pleas from either setting aside, or suspending the judgment previously rendered by them, unless it was done at the term it was rendered. This court decided in that case, that the Court of Common Pleas could not, at a term subsequent to the rendition of a judgment, amend it in a substantial and material part. In the report of that case, the reasons upon which the decision was founded, are not very fully stated. For some years anterior to 1823,Courts were expressly authorized by statute to amend their judgments. At the revision of 1824, this provision was omitted, by the legislature, and as the Court believed, intentionally, and not from inadvertence, as the bill proposed by the committee of revision, and sanctioned by both branches of the legislature, providing for the amendment of judicial proceedings was the same as the former law, with the exception that the power to amend judgments was omitted. The power of Courts to amend their records, in matters of substance, after the term in which final judgment was rendered, is not a part of the ancient common law, nor were the Court aware that the Courts of any of the United States exercised this power over the records of their judgments, unless given them by statute. Courts have suppled omissions and defects in their records by entries of judgments, or other proceedings nunc pro tunc, but this bears but little analogy to amending the record of a judgment perfect on its face, so as to make its operation and effect essentially different from what it originally was.

Our peculiar system of jurisprudence seemed to require that the Court of Common Pleas should not possess the power of amending judgments in matters of substance, after the terin in which they were rendered. It has been the uniform policy of our laws, to give to a party dissatisfied with the judgment of the Court of Common Pleas, the privilege of appealing to the Supreme Court, within a short time after the term, and thereby vacate the judgment and have another trial upon the merits. But if a judgment with which the party was satisfied

may, after the period for his appealing has elapsed, be amended in substance so as greatly to increase his liability, as was the case cited from 1 Ohio Rep. 375, he will be bound by it, without the benefit of an appeal, or a second investigation, by a superior tribunal. It is the same as respects writs of error. A judgment may be rendered in the common pleas against a defendant and the proceedings evidently be erroneous, and yet the party consider it of too little importance to sue out a writ of error within the time limited by statute, and if, after the expiration of the period, the judgment may be so amended as greatly to enhance the amount, the party would sustain serious injury, without any remedy either by writ of error or appeal. But these objections do not exist, nor can these inconveniences ever result from the Court of Common Pleas exercising jurisdiction in setting aside, for irregularity a judgment previously rendered The cause will then stand as if no judgment had ever been entered, the issue made by the parties will be tried by the proper forum, the judgment of the Court given, and either party can avail himself of his right of appeal, or writ of error as he may be advised. A party cannot by this course, be deprived of any right or privilege granted him by law. The delay and additional expense being the only loss or inconvenience he can suffer. The Court are of opinion, that the complainant had adequate remedy at law, and for this reason, the demurrer must be sustained.

ROBINSON v. NEIL.

A declaration upon the covenant of warranty, under the statute concerning covenants real, must aver an eviction.

This was an action of covenant, adjourned from the Supreme Court of Franklin county.

The declaration contained two counts. The first set forth an indenture, made the 7th October, 1822, between the defendant of the one part, and the plaintiff of the other part, by which the defendant conveyed to the plaintiff, for the consideration of five thousand dollars, a certain inlot in the town of Colum bus; after reciting the indenture the plaintiff further stated, "that in and by the said indenture it was further witnessed, that the said William did covenant and promise, to and with the said James, his heirs and assigns, that the said premises thereby conyeyed were free and clear of all incumbrances, and that he, the said William, would warrant and truly defend the same unto the said James, and unto his heirs and assigns forever, against all claims whatsoever, which said last mentioned covenant of the said William, contained in the said indenture, by virtue of the statute of the state of Ohio, entitled, an act declaring the law in certain cases of actions upon covenants real, and for other purposes, passed the 2nd January, 1815, has the force, effect, and operation of a covenant, that he, the said William, was, at the time of the making said indenture seized of a good and indefeasible estate in fee simple, in the aforegranted premises. And the said James in fact saith, that the said William was not at the time of

the making said indenture, nor hath he been at any time since, seized of a good and indefeasible estate in fee simple, in the aforegranted premises, but on the contrary thereof, certain other persons, at the time of the making the said indenture, and continually from thence until the present time, had and still have, lawful right and title to the said premises, contrary to the form and effect of the said indenture, and of the said last mentioned covenant therein contained, operating as aforesaid by virtue of the statute aforesaid."

The second count was the common count upon a covenant of seizin. The defendant craved oyer of the indenture and made it part of the record. The indenture contained, in fact, no covenant of scizin, nor other covenant except those specified in the first count, to wit: the covenant against incumbrances, and the common covenant of general warranty.

The defendant pleaded, First: Non est factum. Second: That the premises were free and clear of all incumbrances, and that defendant had well and truly warranted and defended, &c. Third: That defendant was seized of an indefeasible estate in fee, &c. Fourth: That the plaintiff, on the 7th October, 1822, (the same day on which the deed in the declaration mentioned was executed,) in consideration of five thousand dollars, sold and conveyed to the defendant the same inlot, by deed, with full covenants of seizin, general warranty, &c. Fifth That on the same 7th October, and before the plaintiff had sustained any damages, the plaintiff, by deed of mortgage, to secure the payment of three thousand dollars, sold and conveyed said inlot to the defendant, with full covenants of seizen, general warranty, &c. Sixth That a scire facias was issued on said mortgage, a judgment had, and the premises were sold, before this action was brought, to the defendant, for a sum not sufficient to satisfy the judgment, &c. Seventh In the seventh plea the defendant set forth the mortgage mentioned in the sixth plea, and averred that the condition had not been complied with, and that the mortgage money was yet unpaid, &c. whereby the estate became absolute at law, &c.

The plaintiff took issue upon the first and third pleas, and demurred generally to the second, fourth, fifth, sixth, and seventh.

Wilcox and Hammond, for defendant. Ewing, contra.

By the COURT.

The doctrine settled at this term, in the case of Administrators of Backus v. M'Coy, decides this case. Judgment must be for the defendant.

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