
    Dr. John L. Felder v. Hon. William Johnson.
    Columbia,
    June, 1830.
    An authority to an attorney, to enter an appearance to an action to be commenced, given in consideration of the release of property of the party, which had been levied on by process of domestic attachment, will not be avoided for duress, after the property has been released, and the appearance entered pursuant to the authority, although the attachment may have been improperly obtained: there being no evidence, either of its being important to the defendant to recover possession of the property, earlier than it might have been recovered by replevying, or that the plaintiff was unable to respond in damages for the trespass; and the attachment itself being regular on its face, and for the same debt, which was sued for in the action, to which the appearance was entered.. — vide Meek v. Atkinson, ante, p. 84.
    Where service of a writ was acknowledged by an attorney, under an authority from his client, subject to the approval of the latter; held, that the acknow-ledgement could not be disavowed, after the term to which the writ was returnable.
    Where an act is done subject to a right of revocation, and no time is limited, within which such right may be exercised, it miist, nevertheless, b'e exercised within a reasonable time, to be determined by the circumstances and nature of the transaction. It cannot be exercised after a period, when other persons must necessarily have acted upon the faith of the validity of the act done, aud would be injured by a subsequent revocation.
    Although a party would have been intitled to a new trial, on the ground of surprise, if he had been forced to trial against his-will, it will not be granted, if a continuance were not moved for in the Court below.
    Tried before Mr. Justice Huger, at Sumter, Spring Term, 1830.
    This was an action of assumpsit upon an account for medica?, services, rendered by the plaintiff to the slaves of the defendant, The defendant, at the last term, had taken out a rule upon the plaintiff, to shew cause, why the service of the writ, and the proceedings thereon, should not be set aside. This rule was called up prior to the opening of the docket; and upon the plaintiff’s shewing cause, the following facts were brought to the view of the Court.
    > The plaintiff sued out a writ of domestic attachment, in Sumter District, against the goods of the defendant, who resided at the time in Charleston ; at which place he had a fixed and known domicile, although compelled, by official duties, to be frequently absent from the State, being one of the Associate Justices of the Supreme Court of the United States. Under this writ, which issued, for the same debt, upon which the present action was afterwards brought, a slave of the defendant was taken into custody in S>',m>er District; but was afterwards released, upon the defendant’s giving to the plaintiff an authority, in writing, to C. Mayrant, Esq. to enter an appearance for him, to any suit, which might be brought against him by the plaintiff, returnable to Sumter District. This authority was dated 4ih January, 1829; and the defendant, by a letter dated in Charleston on the same day, informed Mr. Mayra* rt that he had given the authority, but said he was inclined to think he ought to revoke it: and desired Mr. Mayrant to defer acting, until he, the defendant, should have thought further on the subject. Mr. Mayrant, on the authority being presented to him by the plaintiff, accepted service, for the defendant, of the writ in (his action, subject, however, to the approval of the defendant. The writ was returnable to Spring term, 1829; and at that term the defendant came to Sumter Court, when Mr. Mayrant informed him, that he had acknowledged service of the writ, but that he had not yet entered an appearance in the appearance book. The defendant did not at that time direct the acknowledgement of service to be withdrawn. In September, 1829, the defendant was informed by Mr. Mayrant, that he had learned in a conversation with the magistrate, by whom the attachment was issued, that no bond had been taken, as required by the provisions of the attachment law: whereupon, the defendant, by a letter to Mr. Mayrant, dated 15th September, 1829, countermanded the authority to enter an appearance; and this rule was in consequence taken out.
    Act of 1785, P.L. 368.
    
      Mr. Mayrant testified, that he had called upon the magistrate^ who issued the attachment, and informed him, that he would be required to return the proceedings to the Court of Common Pleas : to which the magistrate replied, that they were no longer in his possession. He said that the application for the attachment was made late in the evening, and the plaintiff stated, that the defendant was removing his negroes, and that they were then on their way out of the district: the magistrate added, that being pressed for time, he could not then write out an attachment bond, but granted the attachment, on the plaintiff’s promising to call and execute a bond the next morning; and that having after-wards learned, that the slave attached had been delivered up to the defendant, upon some compromise, or understanding between himself and the plaintiff, he, the magistrate, did not think it necessary to require the bond, or to return the proceedings to the Court.
    It was contended for the defendant, that his situation and case were not such, as were contemplated by the attachment act; and that independently of this objection, the attachment was void for want of a bond ; and the authority to enter an appearance was, th< re fore, obtained by duress, and not binding; and, moreover, that the acknowledgement of service, being conditional, might be disavowed, at any time before judgment.
    The presiding- Judge overruled the objections to the service of the writ, arid discharged the rule to shew cause. The case was then called for trial; and the plaintiff proved his account. Dr. James Haynesworth, a witness examined on behalf of the defendant, testified, that the charges were reasonable, and such as were customary among physicians ; and the jury found a verdict for the plaintiff.
    The defendant appealed, and now renewed his motion to set aside the writ and proceedings, including the judgment, on the following grounds.
    
      1. That the warrant of attorney was obtained by duress of the defendant’s goods: the taking of the same being unlawful, inasmuch as the pretended attachment was void, expressly, under the act of 1785, by reason of the neglect of the magistrate; first in not taking a bond of the plaintiff, as required by the aet,‘ arid next in not returning the proceedings to the Court of Common Pleas, at its next sitting: which last circumstance of avoidance could not be known until after the warrant was executed, nor until it was requisite that an appearance should have been entered ; to wit, at the ensuing term.
    2. That the taking was unlawful, the attachment having been, in any event, improperly issued; as the defendant’s situation and case was not'one contemplated by, nor within the provisions of, the attachment act.
    3. That the said attachment must hav'e'been, and in fact was, obtained upon an affidavit of the plaintiff, that the defendant was removing his property out of the district, privately, and concealing himself out of said district, so that the ordinary process of the law could not be served on him: which was notoriously false.
    • 4. That the act of 1785 is not of force.
    5. That, in this particular case of duress, the duress was under colour of law, and the defendant was, therefore, deceived into executing said warrant by the apparent absolute necessity of doing so, in order to release his property; and his peculiar situation required its release instanter, and no action for damages could have indemnified him for its detention.
    6. That no one was authorized by the defendant to accept the service of a writ, or to enter an appearance for him.
    7. That the authority to Charles Mayrant, Esq. for this purpose, was revocable, and had been revoked; nor was the acceptance, or the appearance, sanctioned by the defendant.
    And if this motion failed, then the defendant moved for a new trial, on the ground: That, if the Circuit Court would not set aside the proceedings, the cause should have been continued, to afford the defendant an opportunity of making his defence.
    Gregg, for the motion. The chief question in this case is, whether the authority to appear was revocable. The propriety of the defendant’s exercising his right of revocation is a matter for his own determination. He might well regard the whole proceeding as a trick, and contrivance, to compel him to answer in a jurisdiction, to which he was not amenable ; but to which hé would, probably, have cheerfully submitted, if a wish for his doing so had been intimated. 'And it is not surprising, that he should resent such a proceeding, when he had reason to believe that it was commenced by an affidavit, that he was absconding, or concealing himself, so that process could not be personally served upon bina. The question, however, is whether he possessed the right, in law, to revoke. As a general rule, it will not denied, that a principal may at any time revoke the authority of his agent; and it will be borne in mind, that the authority to Mr. Mayrant was accompanied with instructions, to suspend action upon it, until further orders. It is said, however, that, his omission to disavow Mr. Mayrant’s acknowledgement, was a .waiver of these instructions. But the rule of law is, that where the agent does an unauthorized act, the principal is not bound, either to approve, or disapprove of it. He is.intitled to time for deliberation. Kingston v. Kincaid, 1 Wash. C. C. Rep. 454. Nor will his subsequent acquiescence amount to a ratification; for even an express ratification of an attorney’s acts will not bind the principal, without a full knowledge ol all the facts. Williams v. Reed, 3 Mason, 405. Now here the defendant was not apprised of the irregularity of the attachment, until September, 1829, and he then instantly revoked the authority of his attorney.
    It is intimated that- the authority to Mr. Mayrant was a contract, But it was a contract without consideration. That the attachment was illegal does not admit of a question ; and it is unnecessary to support the grounds of appeal on that point, by argument. The defendant was intitled to the release of his property, and the plaintiff had no right to extort terms for the surrender. If the authority, therefore, were a contract, it was obtained by duress, and is void. Sasportas v. Jennings and Woodrop, 1 Bay, 470. Collins v. Westbury and Brown, 2 Id. 211. Astley v. Reynolds, Str. 915.
    The case of Denton v. Noyes, 6 Johns. 296, may, perhaps, be urged in opposition to the views now submitted. It is a sufficient answer to say, that in that case the application was not made until after judgment; and it is not very clear, that the defendant was not served with process. The English cases áre upon warrants of attorney; and in all of them process had been served. 1 Salk, 8S F. N. B, 96.
    If the proceedings are not set aside, the case of Denton a: Noyes is conclusive, that a new trial must be granted.
    J. Mayrant, Juu. contra.
    
    The attachment sued out by the defendant has been stigmatized in no measured terms; but it is no difficult task to shew, that its alleged illegality is as imaginary, as the assumption of facts upon which the notion is based is gratuitous. It is taken for granted, that the plaintiff swore that the defendant was about to abscond or conceal himself; and the oatli is pronounced to be notoriously false. But the admission of the magistrate, the only evidence on the subject is, that the plaintiff said that the defendant was about removing his negroes, and nothing more. In point of fact, that was all he did swear to; and that was sufficient to intitle him to an attachment, under the 6th section of the act of 1785. P. L. 368. 1 N. & M. 206. 2 Id. 131. 1 M’C. 513. The idea of his having sworn to more, is bottomed upon a supposed legal necessity, which did not exist. Now has the fact sworn to been contradicted 1 On the contrary, that it was true, may be fairly inferred from what is stated, in the 5th ground of apppai, as to the'necessity of the immediate release of the slave attached. If the fact be true; then, although, certainly, no improper motives need be ascribed to the defendant, and none were intended to be imputed to him, yet surely the plaintiff’ had a right to complain, that this step should be taken, before his debt was paid: and it is no just cause of' complaint against the plaintiff, that he resorted to the remedy which the law had provided for him. But if the fact- were not true, the defendant should have replevied: and it was the only mode in which he could have taken advantage of the irregularity, for he could not have quashed the proceedings upon motion. 2 N, & M. 130. Unquestionably then, after putting an end to the proceedings by a voluntary compromise, the defendant will not be permitted, in violation of that compromise, to avoid the writ by a shorter mode of proceeding, than if he had stood only upon his law. .
    Indeed, all extrinsic objections to the attachment, and no others have been urged, are concluded by the fact, that the defendant, has, by entering into the compromise, rendered it impossible to investigate them. Not one of the objections, however, are tenable. As to the bond, .the want of it was, to be sure, a ground for moving to quash the proceedings ; but they would not have been quashed, if a bond had been executed at any moment before the motion was made. 1 N. & M. 207. And it is perfectly clear, that a bond would have been executed by the plaintiff, but for the compromise. The same answer is to be given to the objection, that the proceedings were not returned: although, by the way, it is difficult to comprehend, how the omission to return a writ in March, could have rendered it illegal in the previous January,''not by relation, but by anticipation.
    The act of 1785, is said not to be of force, but on •' hat ground has not been stated. The act of 1785, it is true, related only to the County Courts: but all of its provisions in relation to attachments, were extended to the districts in which there were mo County Courts, by the act of 1788, P. L. 441; and hence it is, that these provisions have survived the abolition of the County Courts, as the cases occurring under them, every day, abundantly shew.
    , If the attachment were legal, and valid, and the Court can, some to no other conclusion in law, or in fact, then the authority given to the defendant’s attorney was a contract, and could not be revoked without the consent of the plaintiff. For it was upon a good consideration ; and there is no ground for imputing duress. The idea of duress is preposterous, to say the least. There was no duress; but there was much of concession and courtesy on the part of the plaintiff: and he certainly might have expected it to have been appreciated very differently, and not stigmatized as duress.
    . Admitting, however, that the authority was revocable, the right of revocation eould not avail to defeat an act done under the authority before it was reyoked. The acknowledgement of service by the attorney was within the direct scope of the authority; and not only was the plaiutiff ignorant of any private instructions limiting the authority, but the defendant did not disavow the act of the attorney, when he was apprised of it. He must, therefore, be bound by it, or it would be a fraud upon the plaintiff. And this is an answer to the case of Kingston v. Kin-caid. With regard to the conditions annexed to the acknow-ledgement, it is sufficient to say, that a repugnant condition is void. And that is the case here, unless some time be intended, within which the right to disavow must be exercised. An ac-knowledgement of service of a writ looks to a future judgment, and a judgment operates in invitum: but if the right to disavow is not limited in point of time, then it may be exercised to vacate the judgment itself; even if it were for the purpose of afterwards maintaining trespass against the sheriff-, for making a levy. If there are to be any limits at all, then it is certainly too late to disavow the writ, after a d-claration has been filed, and an issue made up upon it, in the usual routine of practice.
    
      The motion for anew trial is without foundation. No motion was made for a continuance in the Circuit Court; and it is obvious from the whole case that there has been a fair trial.
   Colcock, J.

delivered the opinion of the Court.

I do not think it important to examine the question, whether duress of goods may, under any circnrqstances, avoid a contract. I know that it has been so decided in the case of Sasportas v. Jennings and Woodrop, 1 Bay, 475 ; but if the doctrine were even more clearly, and more satisfactorily established, I am of opinion, that it can have no application in this case, either on the facts, or on the law. First, there is no evidence to shew, that any unusual or peculiar necessity existed, which rendered it important, that the defendant should have been put hito the immediate possession of his property; nor is there any evidence that the plaintiff was unable to respond in damages for the trespass, or the detention; and, lastly, it was taken by virtue of a legal proceeding which, on its face, was regular, as far as we are informed: and it is confounding all our legal notions to say, that, such a taking could be a duress, which would avoid any act,lawful, and proper in itself. Arid in the next place what was the act"? An authority was given to an attorney to enter an appearance, to try the very right in question. It was not to do an act, which would deprive the defendant of any right which he possessed. It was not to pay a sum of money, unless that money should be proven to be due to the plaintiff. The attachment, it is true, was, to say the least of it, very improperly obtained, as it is clear that the defendant was accessible to the law. He was a fixed resident of the State. But if the defendant preferred entering an appearance at once, and trying the question, to entering into the contest under that process, it cannot be.said, that he was forced to do this, even to get possession of. the property; for that object could easily have been effected by replevying. Act of 1785, P. L. 368.

But it is said that the acknowledgement of service of the writ was conditional, and that it ought to have been set aside on that ground. Certainly, the defendant and his attorney both intended it to be subject to *fte revocation of the former; but no time was fixed, within which the revocation should be made: and on all such occasions, a reasonable time is fixed by the law, which is to be determined by circumstances, arising out of the natufe of the transaction. Wow here, according to the usual coul,ge 0f suc}j proceedings, the ensuing term must be the time by which this power of revocation should have been exercised ; because if exercised after that, the most obvious injury would re-su^ 1,0 ^le °PP0S'te party, by the delay which it would occasion. The) e are many cases in the books, where the Courts have refuse<j t0 set aside judgments, even when they had been entered up without authority, if the attorney was a responsible person. How far these cases may be regarded as authority at this day, I will not determine ; but if in such cases a motion like, the present may be refused, a fortiori, must it be refused, where there was an express power given.

The oidy point of any difficulty is, whether the defendant was not, under the circuinsta'nces of the case, intitled to a continuance. It is not stated, either in the report, or by the counsel, that it was applied for below; and therefore, we cannot now grant it, or open the judgment to let in a defence. If it liad been refused below, and it were now satisfactorily shewn to ns, that ihere was a substantial ground of defence, the defendant might have been permitted to make it, even after judgment. Upon the whole case as presented to us, we concur with the presiding Judge below, and the motion is dismissed.

Johnson, J. and O’Neall, J. concurred.

Motion refused.  