
    Bradt against Walton and Anhorne.
    ¿hasedV‘a1ot$Uof land of B. the title to, which' was doubtful, rcconveyed*1 to B. title‘to* the* lott ques^o/n! con-might* use*" the name of A. in an action of ejectment to recover the land, hut A. was not ther^xpeusefoc to Vdoamthththe suits ov lots in question, except as to the using his name, ifnecessary.
    C B¿n littomey! of eje’etment™md had Cconsent«i to let his name be used, and U. accordingly used as one of the lestiffS'in the^suits ransequence1’’ of Wfthe^iesL™6 was obliged to pay the costs» A. brought an action on the case against C. the attorney, for using his name without his consent, so as to subject him to the payment of costs, kc.; it was held that the authority given by A. to B. being conditional and limited, C. followed the directions of B. at his peril, and had no right to use the name of A. so as to subject him to any costs or expenses; and that A. was entitled to recover of C.the amount of the costs which he had been compelled to pay.
    THIS was an action on the case, brought against the defendants, attorneys of this court, for using the name of , . ° , the plaintiff, without his consent, as one of the lessors, m four actions of ejectment, for a lot of land in Marcellus, in which the plaintiff had no interest, and in which aetions, and the proceedings therein, the plaintiff was, with? out authority, made liable for the payment of a large sum 0f money for costs, &c. v
    The cause was tried at the Otseg'o circuit) in Juney . , r _ . Y_ 1811, before Mr. Justice Fan Mess.
    
    R was admitted by the counsel for the defendants,, •t^at t^le ejectment suits were brought, in which the name 0f the plaintiff was used as one of the lessors, and that 1 ’ they were the attorneys for the plaintiff, and that iudg- . . . , , . , . , 7 ments of nonsuit had been obtained m the causes, m consequence of which the present plaintiff had been oblige¿t0 Pa7 about 600 dollars, for costs of suit, and of the attachments issued against him, for the non-payment of the costs. 
    
    The plaintiff proved, that he and Eli Parsons, another of the lessors, had, before the commencement of the suits in ejectment, to wit, on the 5th February, 1807, quit-claimed and conveyed to John Lepper, the other lessor, their interest in the land in question ; and J. Williams, 
      a witness, testified that in a conversation between Bradt, Lepper and Parsons, relative to the lot, Bradt said that he would not be at any further cost or expense about the lot; and they finally agreed that Bradt and Parsons should release all their right to Lepper, so that he might ' take what steps he pleased to recover the land, and the conveyances were afterwards executed to Lepper.
    
      Lepper and Parsons, being previously released by the plaintiff, were admitted as witnesses and testified, that Bradt and Parsons purchased the lot in question of Lepper, but it was agreed, that they were not to pay for it, unless they were successful in recovering it. After much trouble and expense in endeavouring to obtain the lot, before the Onondaga commissioners, Lepper requested Parsons to prosecute a suit at law for • the lot, and they called on Bradt the 5th February, 1807, when Williams, the other witness, was present. Bradt refused to furnish any more money, or to be at any further trouble or expense about the land; and it was agreed, that Parsons and Bradt should release to Lepper, who might proceed to recover the land, in such manner as he chose; and the deed of release was accordingly executed. Parsons afterwards suggested, that in prosecuting a suit for the recovery of the land, it might be necessary to use the names of Parsons and Bradt as lessors, and they consented that Lepper might use their names, if his counsel should think it necessary; but Bradt, at the same time, refused to be at any further expense, or to have any concern with the suits, further than the use of his name. A few days afterwards, Lepper and Parsons went to the defendants, and requested them to bring suits to recover the lot in question; and after being informed by Parsons, that Bradt had consented that his name might be used, the defendants commenced the actions of ejectment, and made use of the name of Bradt? ns one of the lessors. It appeared that Parsons agreed with Lepper to carry on the suits, at his own expensé, in consideration, that in case of a recovery, he should have half of the lot.
    It appeared also, that when Parsons and Bradt executed the release to Lepper, he gave them a writing, engaging to pay them 50 dollars, in case he recovered the land; and which was intended to recompense them, in part, for the expenses they had incurred in attempting to obtain the lot before the commissioners. This agreement which was held by Parsons, was given up to Lep - per, at the time of the agreement between them as to the suits and the division of the lot, in case it was recovered.
    . The judge charged the jury, that if they believed the plaintiff had authorized the defendants to make use of his name in the suits of ejectment, they ought to find a verdict for the defendants, and he expressed his opinion that the plaintiff had given such authority j but if they believed that the defendants were not authorized by the plaintiff to use his name, then the jury ought to find for the plaintiff, for the amount of the costs he had been obliged to pay. The jury found a verdict for the defendants.
    A motion was now made to set aside the verdict and for a new trial.
    
      N. Williams, for the plaintiff.
    The consent or authority given by the plaintiff to Lepper and Parsons, to use his name, was special and limited, that is, to use his name in such manner as not to subject him to the payment of any costs.. A special agent, acting under a written or verbal authority, must act within the scope of his authority j and if he exceeds it, his acts are void.
    
    [Kent, Ch. J. The principles as to agents are too well settled to be disputed.]
    If, then, the defendants have acted from the authori•¿ation of an agent, who has exceeded his powers, they must be liable. The defendants might use the name of the plaintiff; but if they did so, they were bound to protect him against the payment of costs. If made liable to refund to the plaintiff for the costs he has been obliged to pay, they cannot complain. It was their duty to have looked to the authority of the agents, and if they have been guilty of fraud or deception, the defendants ought to suffer, rather than the plaintiff, who is innocent. It never was the intention of the parties, that the plaintiff should be liable for any further costs. The plaintiff never gave the defendants any authority whatever. The relation of client and attorney did not exist between diem. The defendants had the deed of release before them, and must have known that the plaintiff had no interest in the suits.
    
      Gold, contra.
    This is an action against the defendants, for using the name of the plaintiff without his consent; but it is proved, that he did consent that his name might be used, and that is sufficient to defeat the action.
    There was, in fact, a power from the plaintiff to Lepper and Parsons to use his name"; and a contract on their part to indemnify him against any cost or expense. If the plaintiff has been damnified, he must resort to the contract of indemnity. It does not appear but that Lepper and Parsons are competent to indemnify him; and if they are not, he should have taken security. It is enough for the defendants, that the plaintiff consented that his name might be used as lessor. The question of damages or costs, lies altogether between the plaintiff and his agents.
    Suppose Lepper and Parsons had been the attorneys, could they have been made liable in this action ? Must not the plaintiff have resorted to the contract of indemnity ?
    The defendants standinthe place of Lepper and Par
      sons, and cannot be made liable m this suit, if they are ’ , 1 not responsible.
    Again, the costs contemplated by the parties were the usual costs of prosecuting the suits in ejectment; not the unforeseen, costs of a nonsuit, or a verdict for the defendant,
    
      €.ady, in reply, was stopped by the court*
    
      
      
        See 6 Johns. Rep. 318. 7 Johns. Rep. 539.
    
    
      
      
        Co. Litt. 258. a. note 1. Perk. 189. 5 Johns. Rep. 58. 3 Term Rep. 760. 1. Esp. Rep. 111. 2 Johns. Rep. 48. 6 Johns. Rep. 52. 7 Johns. Rep. 390.
    
   Van Ness, J.

I am satisfied that I was wrong in the opinion which I gave to the jury. It was a voluntary and gratuitous license on the part of the plaintiff, who might annex to it what condition he thought proper. It is admitted, that the defendants stand in the place of Lepper and Parsons, and could have no other or greater power than they possessed, If so, then, they could not use the name of the plaintiff, but on the condition annexed to the consent given by him to Lepper and Par-, sons*

Per Curiam.

The leave given by the plaintiff to use his-name, as one of the lessors, was not only gratuitous, for he had no interest in the suit, but it was specific. It was granted upon the condition that he should not be “ at any further expense, or have any thing to do with the suits or lots.” This was evidently the understanding of the parties, at the time that the plaintiff consented that Lepper might use his name. The plaintiff never meant to be liable, in any event, to any costs or expense that might thereafter be created, in relation to the lot, of to any suit concerning it, and so Lepper and Parsons must have, understood him. They were bound, in good faith, and under their circumscribed authority, to have disclosed to the defendants, when they employed them, the special terms upon which they were permitted to use the name of the plaintiff. They did not do it, and the plaintiff has been eventually subjected to great loss and damage. The single question is, whether he has his remedy, not only against Lepper and Parsons, who abused, by exceeding their power, but also against the defendants, who so used his name, under the directions of Lepper and Parsons. The defendants took the directions of their employers, at their peril. They used the name of the plaintiff, at the peril of being responsible to him, if they, by that means, subjected him to cost and expense. If Lepper and Parsons could not use his name, but under the condition annexed, no person employed by them could do it. The parties to this suit may be considered as equally innocent of any intentional injury, but the plaintiff has the legal right of action, as the defendants have used his name contrary to his instructions, so as te produce cost and expense to him. If his name could not be used, without putting him to cost and trouble, he meant that it should not be used at all, and so he told the persons who employed the defendants. He had a right to annex that condition to the license, even if it went it defeat it altogether. If Parsons and Lepper are insol vent and unable to satisfy these costs, the defendants ought rather to pay them than the plaintiff, for the defendants have trusted to the naked declarations of their clients, but the plaintiff bound them by a special authority.

The verdict ought, therefore, to be set aside, and anew Srial awarded with costs, toabide the event of the suit.

New trial granted.  