Fitzpatrick v. Neal, 3 N.C. 8, 2 Hayw. 8 (1797)

Nov. 1797 · North Carolina Superior Court

3 N.C. 8, 2 Hayw. 8

Fitzpatrick vs. Neal.

TVC NCAN was elected by letter from Fitzpatrick, to cause ‘-5' .Meat to be airceted for a debt due to him should he arrive at Wilmington, Neal was arrested accordingly, and imorkon-ed ; and now Neal being brought up as upon a habeas corpus, moved by his counsel, to be discharged, because Duncan had nota letter of attorney under seal. The counsel argued that every lettered' attorney ter the put pose of causing an arrest, or recovering a debtor the like, shouU.be undei seal, in order that he who gives the power n; sy be estopped to say he did not give it, and so charge the d- fen-eUat again as he might do if the attorney or agent acted without proper authority ; and in a case like the present, where r> suit is carried on in the name of the principal, the power should be filed .amongst the recoids 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 sut-d by their friends and have ?. judgment of the court in their favour, and become discharged of their just debts. And to prove that letters of attorney should be under seal, they cited Cuk. Litt. 52. 1. Ba. Ab. 198, 2 Roll. Ab. 8.

Williams, Justice.

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

JJayweod, Justice.

Powers of attorney to attornies at law, to sue or defend, are always without seal, unless given by corporations who can only act by their common seal: these attornies may enter satisfaction on record, receive the monies due, cause arrests to be made, and do many other acts ; on the contrary, all the instances that in West and other books, of letters of attorney to private persons, are under seal, which, to be sure, is some argument that the law requires them to be so, but why a seal in the latter case is necessary when in the former it is not, 1 cannot well see any goc J reason — -I will consider further of it at another day. This case being again moved, Judge Williams gave the judgment of the court, that the defendant be discharged from his imprisonment, the authority to Duncan to cause the arrest not being sufficient for want of a seal.

He was discharged accordingly»