Tbis is an 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 obtained judgment against tbe present plaintiff, wbo was one of the defendants.
It was admitted by both 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 specific instruction as to collection, and 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 of tbe Peace, or cf tbe order of arrest, or any other proceeding in said action, or of tbe acts of Messrs. Peebles and Harris (counsel in said action for Coben & Son) until years thereafter when tbe present action was begun, and that tbe defendant never authorized or ratified said arrest unless tbe sending tbe claim to' R. B. Peebles for collection 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 defendant 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 plaintiff was not entitled to recover, and that tbe issue should be answered “No,” and directed a verdict accordingly.
*347It 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 responsible for any illegal action taken or directed by tbe attorney wbicb tbe plaintiff did not advise, consent to or participate in, and wbicb was not justified by any authority be bad given.” Cooley on Torts, 131. This is fully sustained by tbe authorities cited in tbe note and other cases. Fox v. Stone, 8 N. Y., 355; Fire Asso. v. Fleming, 78 Ga., 733; Brown v. Kendall, 90 Mass. (8 Allen), 209; Ferguson v. Terry, 40 Ky. (1 B. Mon.), 96. Tbe arrest of tbe plaintiff was not within tbe scope of the attorney’s duty in prosecuting collection of tbe claim unless tbe client bad advised, consented to or ratified the same. Welsh v. Cochran, 63 N. Y., 181; 20 Am. Rep., 319.
No error.