#### NANCY J. ALSPAUGH, Guard’n v. L. H. JONES, and others.

Whether one who has assumed to act as Attorney for another, was authorized to do so, is, under proper instructions from the Court, a question of fact for the jury.

Where a party filled up a writ for himself in his character as guardian, as plaintiff, and handed it to an officer to be served, but, before it was executed, procured another person to be substituted in his place as guardian, and endorsed the note in question to him :

Held, that an Attorney, who usually had taken judgments for the former guardian, and for that reason, after the writ had been executed, andbefore it had been returned (July 1862,) instructed, the SJiei'iff to receive Confederate and other currency in payment of the amount specified upon iUface, was not authorized so to do.

Debt, tried before Mitchell, J., at Eall Term 1869, of Alexander Court.

Tlie plaintiff declare^ upon a note payable by the defendants, originally to one Carson, and by him endorsed to one Marshall, and by the latter to the plaintiff- — all as guardians of the minor heirs of one Emily Alspaugh, deceased, being for $226.90.

The defendants relied upon the plea of payment, and in support of it showed the following facts:

Previously to the first Monday of March 1862, Carson was guardian of the minor heirs aforesaid, and on the 15th of ¡February 1862, he filled up and handed to the Sheriff a writ for the same cause of action as that in the present suit, returnable to Eall Term 1862, of Alexander Superior Court.

On the 19th of July, the said officer executed said writ. Immediately, one of the defendants insisted on paying the principal, interest and cost, as demanded by the wilt, in currency, a considerable amount of which consisted of N. 0. Rank notes; but a greater amount was in Confederate currency. The officer doubted his authority to receive payment. Thereupon they called on an Attorney residing in Taylorsville, for his opinion whether the officer had authority to collect, and give a discharge for money demanded by the *30writ; lie instructed them that lie liad tbe power and authority to do so, and directed tbe officer to receive it, which be did in snob currency as above mentioned, and tbe only evidence as to tbe value of sucb currency at that time, was that it was received by some, and by others was refused. Tbe Sheriff, after receiving tbe amount of principal, interest and costs in tbe said currency, endorsed for bis return on writ, as follows: u July -19 1862, satisfied in full,” &c. Tbe Attorney in question bad usually prosecuted suits brought by Mr. Carson to collect tbe moneys of Ms wards. In doing this, tbe only service required of him was to take judgments. Tbe collections were actually made under tbe directions ot Mr. Carson, and tbe money received by him. In regard to tbe writ issued by Carson, February 1862, be at first declmed to prosecute it, but afterwards, and before tbe writ was issued, be undertook to attend to it, as to other suits of like nature. When tbe payment was made to tbe officer, tbe Attorney was present. Tbe initials of bis name made by himself, were endorsed on the writ, before tbe payment was made; but be bad no recollection that be bad ever before seen tbe writ. Tbe note was not present, but be forthwith received from tbe officer, and paid Mto tbe Clerk’s office, tbe currency received, and it remamed there uncalled for, as far as be knows or believes, for two years, when be withdrew a part of it for bis own use, and tbe remainder suffered tbe fate of all Confederate currency. Tbe Clerk mentioned to some of tbe parties interested, that those notes were thus deposited, but does not recollect when, or to whom.

It was further shown m the case, that on tbe first Mqnday of March 1862, Mr. Carson procured tbe appointment of G-. Marshall, uncle of bis wards, to them guardianship, and at that time be endorsed over and assigned tbe said note, and all notes of bis wards, to said Marshall, and defivered them over to him. He never afterwards bad possession of any of them, and bad no longer tbe management of tbe suit brought on said note, or any right to collect it. Marshall was in*31formed be had issued a writ for its collection, but it did not appear that be, Marshall, knew that any counsel bad been retained to prosecute it. At the time of the alleged payment, the said note was in the possession of Marshall, at bis residence, a considerable distance from the town of Taylorsville, and there was no proof tending to show when be received notice of the alleged payment.

The counsel for plaintiff requested the Court to instruct the jury, that the evidence did not show that the Attorney was an attorney and agent of the plaintiff, with such authority and power as to ratify by bis direction or assent, the collection of the money demanded by the writ.

The Court refused the instructions called for; but instructed the jury, that the collection and receipt of the notes and currency by the officer, under the instructions as set forth in the evidence, was a discharge of the note, and the defendants were entitled to then verdict.

The plaintiff excepted; Verdict for the defendants; Rule, &c.; Judgment, and Appeal by the plaintiff.

W. P. Caldwell, for the appellant.

Boyden & Bailey, contra.

Settle, J.,

Two questions are presented for our consideration.

1. Was the attorney ever empowered to act as attorney in the suit brought by Carson, and if he was, how far did his authority extend f

It was contended upon the argument that the effect of the initials of the attorney’s name being marked on the back of the writ as attorney, amount in law to instructions to him to receive the money demanded by the writ. His Honor seems to have adopted this view, for he instructed the jury “ that the collection and receipt of the notes and currency by the officer, under the instruction of the attorney, as set forth in the *32•evidence, was a discharge of the note.” The case states that u the attorney had usually prosecuted suits, brought by Mr. Carson to collect the moneys of his wards. In doing this, the only service required of him, was to take judgments. The collections were actually made under the directions of Mr. Carson, and the money received by him.”

His Honor should have left it to the jury to say, whether or not he was the attorney of the plaintiff. And if he was, it was for them to find how far his authority extended ; whether to sue for demand and receive the money sought to be recovered by the suit, or only to take judgment, leaving the business of collecting to Carson.

2. Conceding that he had been fully empowered by Carson to sue for, demand and receive whatever might be due on the note in question, had that power been revoked ?

On the 15th day of February 1862, Carson, who then held the note as guardian, filled up. and handed the writ to the Deputy sheriff. Afterwards, to-wit, on the first Monday in March 1862, he procured the appointment of one Marshall, uncle of his wards, to be their guardian, and at that time endorsed and assigned the said note and all notes of his wards to said Marshall, and delivered them to him. The writ was not executed upon the defendants until the 19th ■day of July following, and then for the first time the attorney marked the initials of his name upon the writ, and assumed, ■contrary to the scope of the authority theretofore exercised by him in the management of Carson’s business, to direct and superintend the collection of this debt, and in doing so, took in payment thereof depreciated currency.

Even the power of Carson (upon which the authority in question is said to rest) to direct and control this debt had ceased, having passed to Marshal, Imonths before the receipt by the Deputy Sheriff.

There was therefore no privity between the attorney and Marshall, who then held the note as guardian, and was many *33miles away in total ignorance of all that was passing to his prejudice.

Let it be certified that there is error.

Per Curiam. Venire de novo.