
    HANDLEY vs. STATELOR.
    
      April 19.
    
    Where no writ has issued, but an attorney appears for the defendant, & pleads to the merits, the authority of the attorney so to do, will be presumed in favor of the plaintiff, in all contests respecting the matter, which may arise between him and the defendant.
    But if the defendant proves that the attorney acted without any authority from him, no act of the attorney will preclude or prejudice his rights.
    
      From the Ohio Circuit Court.
    
   Opinion of the Court, by

Judge Owsley.

THE defendant in error obtained a judgment at law, after a trial on the general issue in an action of assumpsit against the plaintiff in error. To be relieved from this judgment, the plaintiff exhibited his bill in equity, in which he charges that no writ ever issued against him, and that he had no knowledge of the pendency of the suit at law, until after judgment was obtained; that the plea of non-assumpsit was put in by an attorney without authority from him, and alleges the work for which the judgment at law was obtained, was not performed according to contract, and avers that he has a good defence to make to the action at law, and for a new trial, &c.

The defendant in error neither confesses nor denies that the plea was put in without authority from the plaintiff; but alleges the work for which he brought the action, was performed according to contract, of which he made due proof on the trial of the issue at law.

The court below dissolved the plaintiff’s injunction, and dismissed his bill with costs, &c.; to reverse which decree this writ of error has been prosecuted.

We can perceive no error in the decree of the court below. The circumstance of no writ having issued against the plaintiff in error, can furnish no grounds for a new trial, if he, by his attorney, defended the cause, by pleading the general issue. It is true, were it established that the attorney who put in the plea had no authority from the plaintiff, his right should not be prejudiced by such an unauthorised act. But whether the attorney in the action at law, acted without authority, is not proved; nor is the fact admitted by the answer. In the absence of such proof, the court properly dissolved the injunction and dismissed the bill. The decree, therefore, must be affirmed with costs.  