(Jornfll IGatu i^rlynol Hibtarg Cornell University Library KF 297.W39 A treatise on attorneys and counsellors 3 1924 024 522 900 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024522900 TREATISE Attorneys and Counsellors at Law COMPEISING THE Eules and Legal Principles Applicable to the Yocation of the luSuwyev, and those Governing the Relation of Attorney and Client. BY EDWARD P. WEEKS, COUNSELLOK AT LA"W, Author of Works on Mineral Lands, " The Law of Mines, Minerals," etc. SAN FEANCISCO : SUMNER WHITNEY & CO, 1878. CopyrigM 1878, By E. p. WEEKS.- BACOK & COMPANY, PIUNTEKS, SAN FKANOISCO, TAT,. PEEFACE , Except incidentally, the rules and legal principles governing attorneys and counsellors at law in tlieir vocation and in their professional relations with theirxligjits, have hitherto met with but little attention from law writers.' I'believe there is not now in general use any work especially devoted to the subject, and no one has, so far as I am aware, either professed or attempted to take an exhaustive view of this branch of the law. Yet a table of sqme five thousand cases, cited in this volume, and nearly all of which are in some way directly applicable to attorneys and counsellors at law, should s^nl to' indicate that questions in regard to the subject-matter have commanded the attention and called for the adjudication of courts with considerable fre- quency ; and that lawyers have been in the past, and doubtless will be in the future, by no means exempt from litigation where- in they figure not as attorneys alone, but as parties litigant, by reason of their profession. It has occurred to the writer that an exclusive treatise, attempting to present the law governing the attorney as an officer of the court and as the representative of his client, would be of convenience to the profession, and perhaps in some degree lessen its labors, and assist its members in arriving more readily at a just ascertainment of their own rights and liabilities, in their relations to court and client. The reader will perhaps be not displeased if the general de- sign of the work is now disclosed in its more prominent outlines. The book commences with an historical sketch, tfad Chap- ter I is devoted to definitions and classifications. Without making a formal division in the volume, it is as a matter of fact divided into two several parts. The first is devoted to a consideration of the vocation of the lawyer regarded as a vocation, or an office merely, and separate and distinct from the subjects arising out of the relation between the lawyer and his client. In treating of the vocation of the lawyer, the first IV PREFACE. group of subjects claiming attention, pursuing tlie natural order of the subject-matter, is the following : 1st. The general nature of the office, and what are the re- quisite qualifications entitling an applicant to become a mem- ber of the bar. 2(1. These matters reviewed and the qualifica- tions being found to exist, and their nature ascertained. Admis- sion to the Bar is considered, and the Eules and Eegulations governing that admission ; and 3d. As the counterpart of this subject — Removal and Suspension from the Bar, Striking from the Roll, and generally the offenses and improprieties which will authorize the infliction of these punishments and call for the exercise of the summary jurisdiction of the Courts over at- torneys. These topics are covered by Chapters II, III, and IV. After Admission to the Bar, there are certain privileges, disabil- ities, and liabilities to third persons, connected with the attorney's profession and incident to his office, rather than to his relation to his client. The second group of subjects, therefore, falling un- der the general head of the Lawyer's Vocation, comprises these three matters, and includes Chapters V, VI, and VII. After a review of the law in relation to the attorney as a member of a certain profession, his vocation as contradistin- guished from his relative duties to and liability arising from his relations with his client, we have next to consider what mav, perhaps, not inappropriately be called the Law of Attorney and Client. Endeavoring still to pursue the natural order, we will suppose that the client in need of professional assistance has sought out his legal adviser. The relation between them usually opens with a statement on the past of the client of the nature of the business on which he has come. In other words, he " lays his case," or his business, whatever it is, before his counsel. In doing this he necessarily makes many disclosures of a private and confidential nature — disclosures which are known to»the law as Privileged Communications. We shall pause here, before the business between the attorney and his client has attained any further progress, to inquire wdiat com- munications the client may safely make to his counsel with the absolute confidence that, as a question of law, the ouarantv of inviolable secrecy is cast over them — that neither the attorney nor his client can in future be compelled, nor the attorney t1 PKiiFAOE. V * lowed in judicial proceedings, to draw aside the veil which the law has thrown over them, and expose them to public examina- tion and scrutiny. This inquiry is made in Chapter VIII. The business having been laid before the attorney, and the client being desirous of employing him, and the attorney con- senting to act, he is retained by the client. The next thing, therefore, is the retalnev of the counsel and his authority to appear, and the legal results which flow thei'cfrom. This is in- cluded in Chapter IX. As the result of the retainer, the attor- ney is invested with certain authority and clothed with certain powers, which it will next become necessary to consider. This will include a statement as to how the authority maj' be revoked or terminated by death of the client or attorney, by change and substitution, etc. Chapter X is a discussion of these things. The next question which arises is, How shall the attorney fulfill the trust imposed upon him, and what duties are incum- bent upon him in the dealings between him and his client ? This includes the attoi-ney's general duties and his dealings with his client, and embraces Chapter XL The remedy of the client against the attorney is a correlative subject with the duties of an attorney toward .his client and his dealings with him. There are certain rights which the client possesses as against the attor- ney, and certain remedies for the infringement of those rights. We have then next to consider the Rights and Remedies of Clients as against their counsel, the liability of the attorney to his client, and herein of negligence and its consequences. This is done in Chapter XII. We are now to suppose that the business of the attorney with his client is closed, or about to close, or that it has attained a sufficient progress to entitle the attorney to compensation for his services rendered. This leads us to discuss the Rights and Remedies of the Attorney against his Client, and herein of ac- tions for fees, and the lien of the attorney upon funds and docu- ments in his hands to secure his compensation. These matters are treated of in Chapter XIII, and conclude the work, which is respectfully submitted to the profession for whose use it is chiefly intended, and concerning which it treats. Sacramento, June, 1878. rv TABLE OF CONTENTS. INTRODUCTION. § 1. Preliminary. § 2. Tlie Athenian courts. § 3. Eoman judges, advocates, etc. § i. Patron and client. § 5. The jurisconsults. § 6. The Eoman lawyers under the empire. § 7. Lawyers in the Middle Ages. § 8. The bar in France. § 9. The modern bar o£ France. § 10. Avoue's and avocats. § 11. Qualifications for admission. § 12. Appointment of attorneys. § 13. Discipline and independence of the French bar, § 14. Advocates in England . § 15. The Inns of Court. § 16. Eegulations as to legal education . § 17. Admission of students. § 18. Keeping terms. § 19. Calling to the bar. § 20. Certificates to practice under the bar. § 21. Lectures and examinations. § 22. Lawyers in Scotland. § 23. The profession in the United States. § 24. Legal instruction in the United States. § 25. Difference between the English and American bar. CHAPTER I. DEFINITIONS AND CLASSIFICATIONS— USE OK riOKMs § 26. Different designations applied to lawyers. § 27. Advocates — Civil law, ancient and modern. § 28. Attorneys at law. § 29. Barristers. § 30. Counsel. § 31. Lawyers. § 32. Proctors. TABLE OF CONTENTS. § 33. Serjeants at law. § 34. Solicitors. 5 35. Use of terms. CHAPTER II. THE VOCATION OF THE LAWYER— GENEEAL NATURE OF HIS OF- FICE—QUALIFICATIONS. § 36. The lawyer's Toeation. § 37. Character of the office. ' ^ § 38. Test-oath cas'es in the United States Supreme Court. § 39. And in California. . -• § 40. "Who may be attorneys — Admission of women as attorneys. § 41. Taxation of the profession. CHAPTER III. ADMISSION TO PRACTICE. § 42. Admission. § 43. Admission and permission to practice essential. § 44. Old regulations as to admission and practice in England. § 45. The articled clerks of England — Persons contracting. § 46. Service under the articles. § 47. Continuous service. § 48. Holding other offices. § 49. Service under partners. § 50. Affidavit necessary. § 51. Assignment and discharge of articles. § 52. Disputes between clerk and master. § 53. The application and admission to practice under the English system. § 54. Examination and admission of attorneys under the English system. § 55. The certificate. § 56. Registration of names. § 57. Practicing in the names of each other. § 58. Effect of want of qualiiicatiou. § 59. Readmission. § 60. Statutory regulations in England. § 61. Solicitors under the Supreme Court of .Judicature Acts § 62. Colonial Attorneys Relief Act, 1874. § 63. Statutory regulations in Ireland. § 64. Statutory regulations In Scotland. § 65. Statutory regulations and rules in the United States. § 66. In the United States Supreme Court. §§ 67-76. In the State Supreme Courts. TABLE OF CONTENTS. CHAPTER IV. SUMMARY JURISDICTION OP COURTS OVER ATTORNEYS— STRIKING FROM THE ROLLS — SUSPENSION FROM PRACTICE — ATTACH- MENT— C ONTEMPT— ETC . § 77. Liability to summary jurisdiction, § 78. Liability on undertakings. § 79. For acting ■without authority. § 80. Striking from the rolls. § 81. Instances of misconduct authorizing suspension or disliarring. § 82. Restoration. § 83. Practice. § 84. Whether mandamus Tvill lie. § 85. Striking from rolls for defect in articles. § 86. Barratry. § 87. Maintenance. § 88. Champerty. § 89. Striking from the rolls at attorney's own request. § 90. Responsibility of the judiciary in civil actions for striking an attorney's name from the rolls. § 91. Compelling disclosure as to abode or occupation of client — Requiring at,- torney to produce client. § 92. Delivery up of documents. § 93. Papers in attorney's hands for professional purposes. § 94. Compelling payment of money. § 95. Summarily imposing costs. § 96. Answering matters of affidavit. § 97. Contempts — Attachments against attorneys. § 98. Contempts in the United States courts. § 99. Miscellaneous offenses. §§ 100-105. Statutory regulations. CHAPTER V. PRIVILEGES OF ATTORNEYS. AS OFFICERS OF THE COl.TRT- EXEMPTIONS. 106. Privilege in general. 107. Privilege from arrest. 108. Privilege as to suing and being sued. 109. Waiver of privilege. , 110. Privilege of counsel in argument. § 111. Under control of the court. § 112. Argument to be confined to the evidence. § 113. Comments on persons and their actions. § 114. Argument on the law. § 115. Limiting time of argument. § 116. Respon,sibility of counsel in argument. § 117. Publication of argument. X TABLE OF CONTENTS. CHAPTER VI. DISABILITIES OF ATTORNEYS BY REASOX OF THKIU PROFESSIf)N. § 118. Disabilities of attorneys. § 119. Restrictions as to becoming bail or surety. § 120. As to appearing for both parties, or on opposite sides. § 121. As to purchasing choses in action or demands for suit. § 122. As to acting in otlier capacities. § 123. As to acting for unqualified persons, and i>ermitting others to use theii- names. § 124. When counsel in a cause may be a witness. § 125. Comijetency as a witness generally. § 126. Opinions as an expert on matters connected with his specialty. CHAPTER Vn. ATTORiSTEYS LIABILITY TO THIRD PARTIES. § 127. General liability to third persons. § 128. Liability for fees and costs. § 129. Liability for indorsement of the writ. § 130. Liability on undertakings. § 131. For excess of authority. § 1.32. In cases of malpractice. § 133. Liability for acts done— Malicious prosecution by attorney. § 131. .Toint liability of attorney and client. § 135. Liability of third persons to attorneys. § 136. As for slander of attorneys. § 137. Expressions held slanderous. § 138. Expressions held not slanderous. § 139. Other expressions. § 140. The evidence. CHAPTER Vm. THE PRIVILEGE OF PROFESSIONAL COMMUNICATIONS § 141. Rfelative duties. § 142. Origin of the rule as to privileged communications. § 143. Rule not confined to pending suits. § 144. General rules. § 145. Rule in the Federal Courts. § 146. Rule in equity causes. 5 147. Burden of proof. § 148. Importance of communication not a test. TABLE OF CONTENTS. § 149. Injunction of secrecy not necessary. § 150. Communications held privileged. § 151. Communications held not privileged. § 152. Disclosures allowed for protection of attorneys. § 153. Professional employment necessary. § 154. But a formal retainer not necessary. § 155. Mode of imparting privileged information. § 156. Effect of the client's calling the attorney as a witness. § 157. Right of cross-examination of attorney. § 158. Effect of attorney making himself attesting wituf-ss. § 159. Effect of the presence of both parties. § 160. What persons the privilege includes. § 161. Clerks, interpreters, conveyancers. § 162. Client also protected from testifying. § 163. Eule as applied to documents. § 164. Deeds. § 165. Testamentary communications. § 166. Fraudulent transactions. ' § 167. Admissions. § 108. Acts done. ' § 169. Matters observed. § 170. Communications in view of breaking the law. § 171. Collateral matters. § 172. Third parties. § 173. Disclosing address of client. § 174. Privilege not lost by termination of professional relation. § 175. Communications made to legal advisers of two parties jointly. § 176. Correspondence between co-defendants. § 177. Waiver of the privilege. § 178. Propositions to compromise. § 179. Information received extra professionally. § 180. Information not within the scope of professional duty. § 181. Eule in criminal cases. § 182. Course for attorney to pursue when subpoenaed. CHAPTER IX. RETAINBE, AND AUTHORITY TO APPEAK— APPEAl! AN(JB. 1. — RETAINER. § 183. Commencement of the professional relation. § 184. The right to counsel. § 186. Establishing the relation of attorney and client. § 186. The retainer — written or parol. § 187. Contract of retainer. § 188. General and special employment. § 189. Eetainer by one as agent for another. § 190. Eetainer by. corporations. § 191. Effect of dissolution of partnership on retainer. § 192. Effect of death of party on retainer. xn TABLE OP' CONTEN'J'S. II, — ATJTHOKITV TO APPEAR — APPEAKANCK. § 193. ABcient mode of appearance. § 194. Appearance at the civil law. § 195. General license by reason of admission. § 196. Presumption of authority to appear, § 197. Adverse party may presume authority. § 198. Denial of authority — requiring its production. § 199. Effect of authorized appearance. § 200. Unauthorized appearance — dismissal of suit. § 201. Judgments obtained through unauthorized appearance. § 202. Interference -with judgment by Court of Equity. § 203. Collateral attack. § 204. Unauthorized appearance — foreign and domestic judgments. § 205. Effect of unauthorized appearance on innocent tliird parties § 206. Question of attorney's pecuniary responsibility, § 207. Laches. § 208. Appearance for a portion of several parties or for all parties. § 209. Appearance for a partnership. § 210. Appearance by attorney in appellate courts. § 211. Defendant's remedy against attorney. § 212. Remedy of the party whose name is used. § 213. AYithdrawal of appearance. § 214. Practice. CHAPTER X. AUTHORITY AXD POWERS OF ATTORNEYS BY' VIRTUE OF THEIR RETAINER. § 215. Results flowing from the retainer. § 216. Law of principal and agent applicable. § 217, Authority and powers, § 218. Things that an attorhey may do by virtue of his general retainer. § 219. Things an attorney may not do by virtue of his retainer without special authority. § 220. Control over conduct of suits and proceedings. § 221. "When attorney may exercise his discretion. § 222. Binding effect of attorney's acts as against the adverse party. § 223. Authority to make admissions binding upon the client. § 224. Implied admissions. § 225. Attorney's admissions to prove his own authority. § 226. Admissions of clerks, etc. § 227. Recalling admissions before judgment. § 228. Authority to compromise litigated claims, and to make .■^cttlemeuts § 229. Negligent compromise. § 230. Notice of want of authority to compromise. § 231. No compromise after judgment. § 232. Authority to demand and receive ]iayment. § 233. Authority to refer or submit to arbitration. § 234. Collateral matters. TABLE OF CONTENTS. Xlll § 235. Authority to stipulate that cause of action shall not abate. § 236. Authority to stipulate for continuance, § 237. Authority to receive notices. § 238. Effect of judgment on authority. § 239. Control over judgment and execution. § 240. Authority to satisfy judgment. § 2il. Vacating judgment. § 24:2. Authority after judgment. § 243. Auxiliary proceedings. § 244. Authority of law partners. § 245. Authority of law clerks. § 246. Authority to employ substitutes. § 247. Ratification by the client. § 248. Duration of authority. § 249. Termination of the relation and of the authority. § 250. By revocation of authority, and diange and substitution of the attorney — General rules. § 251. In England. § 252. In United States. § 253. Change after judgment. § 254. Effect of the substitution on the attorney changed. § 255. By withdrawal of attorney. § 256. By death of attorney or client. CHAPTER XI. DUTIES OF ATTORNEYS TOWARDS CLIENTS — DEALINGS WITH THEM. I. — DUTIES TOWARDS CLIENT. § 257. How the attorney is to fulfill his trust. § 258. Degree of fairness and good faith required. § 259. Legal duties towards client. § 260. Duty of disclosing adverse retainer. § 261. Duties in preparing for trial. § 262. Duty as to notifying client as to rendering accounts. § 263. Duties in collecting money. § 264. Payment of money. § 265. Duties as to sales of real property — employment by both parties. § 266. What the attorney undertakes to do in making a purchase. § 267. Duties as to investigating titles. II.— DEALINGS WITH CLIENT. § 268. Dealings with client. § 269. Transactions upheld. § 270. Transactions not upheld. § 271. Conflicting interests. § 272. Mixing funds. §' 273. Purchase of client's property. § 274. Instances. XIV TABLE OF CONTENTS. § 275. Exceptions to the rule. § 27U. Extortionate agreements. § 27f . Purchase of snbject-matter of controversy. § 278. Purchase of claims. § 279. Information received from client. § 280. Investment of moneys. § 281. Gifts from client. § 282. Eendering accounts. CHAPTER XII. LIABILITY OF ATTORNEYS TO THEIR CLIENTS — NEGLIGENCE —REMEDIES OF CLIENTS AGAINST THEIR ATTORNEYS BY AC- TION, ETC. § 283. Liability to client. § 284. What skill, care, and diligence required. § 285. Skill required. § 286. Liability for mistakes. § 287. Liability for blunders in process, and formal proceedings. § 288. Liability for ignorance of the law. § 289. Effect of locality on the rule. § 290. Attorney not expected to guarantee success. § 291. Care required. § 292. Diligence required. § 293. Liability for negligence. § 21)4. Neglect of attorney is neglect of client as to third parties. § 295. Usual remedy. § 296. Legal and equitable actions. § 297. Negligence in conduct of a cause. § 298. Position of burden of proof in cases of negligences. • § 299. Instances of negligence. § 300. Pleading and evidence in actions for negligence. § 301. SufScient count in an action for negligence. § 302. Negligence as a defense to an action for fees. § 303. Negligence of associates. § 304. Liability for matters not litigated. § 305. Liability for acting in excess of authority. § 306. Liability for acting without authority. § 307. Collection and appropriation of money. § 308. Payment of money. § 309. Accounting and payment. § 310. Liability for disclosing secrets. § 311. Investigation of titles— Investment of money— Sufficiency of securities. § 312. Advice as to titles. *■ § 313. Effect of nonpayment of fees. § 314. Liability of law-partners. § 315. Attorneys' books. § 316. Liability for abandonment of suit. § 317. Other liabilities. TABLE OF CONTENTS. § 318. Not liable for acts not within the scope of their profession.. § 319. Measure of damages. 5 320. Statute of Limitations. CHAPTER XIII. LIABILITY OF CLIENTS TO ATTORNEYS — COMPENSATION OF ATTORNEYS FOR SERVICES RENDERED — REMEDIES OP ATTORNEYS AGAINST CLIENTS TO RECOVER OR SECURE COMPENSATION — REMEDY BY ACTION-REMEDY BY LIEN. I. — REMEDY BY ACTION, § 321. The Roman Honorarium. § 322. In the Middle Ages. § 323. In England, § 324, Solicitors' fees under the Judicature Acts. § 325. Solicitors' fees in England under agreements. § 326. Bills of cost, under the English system. § 327. Delivery of the bill. § 328. Requisites of the bill. § 329. Propriety of the charges. § 330, Liability to be taxed. § 331. Referring bill to taxation. § 332. Taxation of bill indepfindent of statutory provisions, § 333. Compensation in the United States. § 334. Compensation under general retainer. § 335. Actions for compensation. § 336. Liability of client. § 337. Implied obligation, § 338. Pleading and proof. § 339. Proving retainer— Evidence of employment. § 340. Evidence for plaintiff, § 341. Evidence for defendant. § 342. Attorneys' services — when considered as necessaries. § 343. Measure of compensation. § 344, Statute of Limitations. § 345. Compensation under special agreement, § 346. Express contract. § 347. Assignment of debt. §348. Agreement for fixed sum in gross. § 349. Promissory note for services, § 350. Contingent or conditional fees— Champerty. § 351. Contracts held ohampertous, § 352. Contracts held not champertous. § 353. Maintenance and barratry. § 354. Contingent fee not within the Statute of Frauds. § 355. Right to contingent fee as against attaching creditor. § .356. Contract of indemnity. § .357. Merger of the contract. § 358. Death of client. § 359, Commissions for collecting. XVI TABLE OF CONTENTS. § 360. Fraudulent assignments. I § 361. Measure of damages. § 362. Compensation of substitutes. § 363. Taking new security for fees pending relation. § 364. Making new contracts for fees after retainer, § 365. Effect of 'withdrawal from case. § 366. Effect of dismissal of case. § 367. EfEeot of change of attorney. II. — THE KEMEDY BY tlEN, § 368. Lien of attorney. § 369. Two kinds of lien — general and particular. § 370. The particular or charging lien. § 371. The general lien. § 372. The so-called "retaining lien." § 373. Lien on papers. § 374. Summary jurisdiction over delivery of papers as affecting the lien. § 375. "Waiver or loss of the lien. § .376. When superseded. § 377. Collusive settlements. § 378. Eemedies on the lien. § 379. Equitable interference to protect the lien. § 380. Set-off as against lien. § 381. Appropriation of payments on account. § 382. Settlements between the parties as affecting the lieu. § 383. Liens on partnership debts. § 384. Liens on sums awarded. INTEODUCTION. § 1. Preliminary. § 2. The Athenian courts. § 3. Eoman judges, advocates, etc. § 4. Patron and client. § 5. The jurisconsults. § 6. The Eoman lawyers under the empire. § 7. Lawyers in the Middle Ages. § 8. The har in France. § 9. The modern bar of France. § 10. Avouis and avocats. § 11. Qualifications for admission. § 12. Appointment of attorneys. § 13. Discipline and independence of the French bar. § 14. Advocates in England. § 15. The Inns of Court. § 16. Regulations as to legal education. § 17. Admission of students. § 18. Keeping terms. § 19. Calling to the bar. § 20. Certificates to practice under the bar. § 21 . Lectures and examinations. § 22. Lawyers in Scotland. § 23. The profession in the United States. § 24. Legal instruction in the United States. § 25. Difference between the English and American bar. § 1. Preliminary. — To illustrate the origin of some of the rules which have obtained in modern times in regard to mem- bers of the legal profession, it is designed to give a brief histor- ical sketch of the lawyers of the earlier periods of the world's history. Obviously, nothing but a sketch is appropriate in what the author has endeavored to make a law text-book. For elab- orate and extended historical research, the reader must look elsewhere, and to those volumes in which is unfolded the full history of the bar and the judiciary of Greece and Eome and of early France, of the times of the Roman Republic and the Empire, of the times of Constantine and of Charlemagne. But A. & C— 1. 2 INTRODUCTION. §§ 2-3 a brief historical introduction may be of service in the perusal of the pages of this book, as showing the origin of some of the peculiar principles which have governed the profession, es- pecially in England. For instance, in that country, and for a long period, no barrister or advocate has been allowed to sue for compensation for his services. The theory is that his office is simply one of honor and dignity, and not of profit, and that what he receives must be by way of voluntary and honorary gift. The practical result is that he generally, in some way, secures his compensation at the commencement of his employ- ment. The rule is apparently a relic of the old relation between the Roman advocate, or patronus, and his client. The reason of the rule has, to a great extent, passed away, but the rule itself remains. § 2. The Athenian courts.^Among the Athenians it does not appear that there was any distinct class of men whose pecu- liar office it was to speak on behalf of parties in courts of justice. The practice was not ■ uniform, but the rule generally seems to have been that a speaker was not allowed to appear as an ad- vocate unless he had some interest in the cause itself. But although originally parties were not allowed to avail themselves of the assistance of advocates to plead their causes for them, this rule was so far relaxed in after times that a relative or friend was, permitted to speak in their behalf if they were pre- vented by illness, or other inability, from conducting their own causes. The employment of advocates proper was not usual. The persons at Athens who corresponded most nearly to ad- vocates of modern times, were not speakers in the courts, but those who composed speeches for clients, to be delivered by the parties themselves, in their own causes, as in the case of courts- martial. This was the ordinary occupation of a class of distin- guished men at Athens. § 3. Roman judges, advocates, etc. — In the earliest times, the kings -fof Eome themselves presided at the trials, as was sometimes the case in France in the Middle Ages ; but after the expulsion of the kings this jurisdiction was exercised by the consuls, and subsequently, and down to a very late period § 3 INTRODUCTION. 3 in Eoman history, by the prtetors. Their number was origi- nally two, and they were called prmtor urbanus and preetor peregrinus ; but afterwards they were increased, and the num- ber varied at different periods. In the time of Cicero there seem to have been twelve. The exact number in the later ages of the republic has been a matter of much controversy.-' They did not, however, personally attend the hearing of all the causes, and give judgment themselves, but were empowered, and in many cases obliged by law, to appoint judges for the purpose. When the praetor tried causes, he was said cognoscere, either de tribunali, or de piano. The former term was used when he sat upon a raised seat or tribunal, and heard the case formally argued before him ; the latter when, as was frequently the case, he administered the law in a more familiar manner, con- versing with the parties, and standing upon the same level with them. The disputes so heard he generally determined on the spot.2 When the prastor held his court de tribunali, he summoned to his aid a number of assessors called jildices, who sat on each side of him, a little behind his seat ; they were selected on ordi- nary occasions out of the centumviral body, who formed a kind of judicial college at Rome. In the courts of the centumviri were tried causes involving the most dry and technical points of law. Questions were there discussed relating to adverse pos- session, guardian and ward, pedigree, law of debtor and creditor, party-walls, ancient lights, easements, the validity of wills, etc. The criminal causes were among others : 1. Actiones pop- ulares. These were trials appointed at the instance of the prajtor for the punishment of the lower grades of misde- meanors, and chiefly such as were offenses against municipal and sanitary regulations. Any person might be a prosecutor, and the penalty of a fine was generally Imposed. 2. Actiones extraordinarice, or judicia extraordlnaria, apparently embracing such crimes as were not specially provided against by any par- ticular law, or to which no particular punishment was affixed ; but it was left to the discretion of the tribunal, which was itself 1 Polleti, Hist. Fori Eomani, lib. 1, u. 5; Eorsytli's Horteusius, 77. 2 Ibid. ; Heinecc. Syntag, lit). 4, tit. 6. 4 INTRODUCTION. 8 * of a special nature, and appointed for the occasion, consisting sometimes of the whole senate, sometimes of the consuls, or other magistrates, as the case might be. But the prsetor did not sit as a judge, in our sense of the word, at trials ; he acted as the president of the court, under whose auspices and authority the proceedings were conducted ; but he appears to have had no voice in the sentence. This power belonged to the judices, who were summoned by him to sit upon the trial, and of whom we find such constant mention made in the speeches and writings of Cicero. Their names were inscribed on a list or sort of jury panel. Album Judicum. Their number varied at different times ; they seem at first to have been confined exclusively to the senatorian body ; but by the Sempronian law, (b. c. 123) of which Tiberius Gracchus was the author, this right or privilege was transferred from the senators to the equestrian order ; and the latter enjoyed it for nearly fifty years until Sylla (b. C. 80) deprived them of it, and restored it to the senators. By a later law, Aurelia Lex, passed b. c. 70, it was enacted that the judices should be chosen from the senators, the knights, and the trihuni cerarii, the last of whom were taken from the body of the people. These formed the three decuricB of judges, which existed until Julius Cassar reduced them to two by removing the decurice of the trihuni cerarii. The number that sat at a trial seems to have varied from fifty to seventy. After the reign of Au- gustus, the Alhum Judicum contained the names of all who were qualified to serve either on civil or criminal trials, and these amounted to some four thousand.-' § 4. The Roman lawyer, patron, and client. — Having given a slight sketch of the constitution of the Roman courts, and tribunals before which the Roman lawyer practiced, it re- mains now to give a brief account of the advocates themselves. In Rome, there was no particular line of demarkation drawn be- tween the advocate and the statesman. While appearin"- in the cause of his client, the speaker was in fact acquirino- that pop- ularity and influence which placed all public honors within his 1 Forsyth, Hortensius, 78, 79, 82. § 4 INTEODUCTION. 5 . grasp. He was not obliged to devote himself for years exclu- sively to legal studies before he dared to enter the courts, or into public life. The more technical name given to those who practiced in the courts at Rome was that of patroni causa- rum, or simply patroni, and the parties whom they there rep- resented were called their clientes. " How the clientship arose," says Niebuhr, " admits as little of an historical exposi- tion as the origin of Rome. But all, however different in rank and consequence, were entitled to paternal protection from the patron ; he was bound to relieve their distress, to appear for them in court, to expound the law to them, civil and pontifical : on the other hand, the clients were obliged to be heartily dutiful and obedient to their patron ; to promote his honor ; to pay his mulcts and fines ; to aid him, jointly with the members of his house, in bearing burdens for the commonwealth, and defraying the charges of public offices ; to contribute to the portioning of his daughters, and to ransom him or whoever of his family might fall into an enemy's hands." ^ The term advocatus was not applied to a pleader in the courts until after the time of Cicero. Its proper signification was that of a friend who, by his presence at a trial, gave countenance and support to the accused. It was always considered a matter of the greatest importance that a party who had to answer a criminal charge should appear with as many friends and par- tisans as possible, answering a double purpose, that of witnesses to character, while by their numbers and influence they mate- rially affected the decision of the tribunal. In the early ages of the republic the litigants appeared per- sonally in court and carried on the cause themselves. They were not allowed to nominate another to act as their attorney in their behalf, except in three cases : pro populo, pro lihertate, pro pupillo — i. e., in actions where the whole community was concerned, or where some question of personal liberty or guar- dianship was involved. The inconvenience, however, of this rule, led to the substitution of persons who, under the names of cognitores and procuratores, performed functions bearing some resemblance to those of attorneys of the present day. The iKieblihr, History of Kome, vol. 1, 277, 279. INTRODUCTION. §5 cognitor appears to have acted for and managed the causes of parties resident at Eome, while the procurator was appointed in the place of one who was out of Italy, or whose absence from the city was caused by some public duty.-" § 5. The jurisconsults. — Besides the patroni causarum, there was another important class of lawyers at Rome, called juris consulti, somewhat analogous to modern chamber coun- sel. These lawyers, when applied to by parties, expounded the doctrines of the law and informed their fellow-citizens of their rights and liabilities. Their houses were frequented for this purpose, and some of them had great reputation. When it was known that they were willing and competent to deliver opinions on points of law, they were often addressed in public by their clients, and walked up and down the forum consulting with them .2 The introduction to the forum, or " calling to the bar," was observed as an important epoch of life. At the age of seventeen the student laid aside his boyish dress Qprcetexta) and assumed the toga virilis. He then proceeded to the forum, attended by his friends, and was there brought forward by some distinguished citizen, generally of consular rank, and formally introduced as a practitioner in the courts of law. After this, he might at once undertake the conduct of causes. The profession of a jurisconsult was, in some families, heredi- tary. They devoted themselves to the study of the law for the sake of the emoluments they were thereby enabled to acquire. Their opinions were often given gratuitously, as a means of acquir- ing popularity and influence, but there appears to have been no law, as in the case of the advocates, .against their being paid by fees. The distinction between the advocates and the jurisconsults was not unlike the distinction in modern times between the elo- quent criminal lawyer, whose power of speech and capacity of appealing to the sympathies and passions of juries render a deep knowledge of law unnecessary, whether he has it or not, and the busy civil lawyer, who spends the most of his time in 1 Forsyth, Hortensius, 83, 84, 86. ^Niebuhr, Lect. 2, 18; Forsyth, Hortensius, 88. § 6 INTRODUCTION. 7 his chambers immersed in law and the business affairs of men, yet seldom, perhaps, appearing in trials in open court. The Roman courts being a mixture of a court and a jury, great latitude was allowed to the advocates, who made every variety of appeal, to passion, prejudice, friendship, and enmity ; appeals, whether frequent or otherwise, totally out of place in any modern court, when addressed to the judges. The Roman courts were not tribunals whose object was simply to discover whether a person was guilty or not, and where a higher power might step in and exercise a jjardoning or mitigating function. The judges in Rome had stepped into the places of the people, who formerly judged in the popular courts, and they pro- nounced their sentence in the capacity of sovereign. The par- doning power, therefore, manifested itself in the courts. Hence it was that, under the influence of pity or compassion, an accused was often acquitted, totally irrespective of the question of his guilt or innocence. This is not strange when the consti- tution of the Roman courts is taken into consideration.^ § 6. Roman la-wyers under the empire. — Numerous regulations were made in the Code Justinian as to advocates. Among their privileges they were exempted from many offices and burdens imposed upon others. After ceasing to exercise their profession, they were admitted to the order of comites (or counts) of the first rank, and numbered among the claris- simi of the State. Under the Roman law, the father, until the sons were legally emancipated from his control, had absolute power over the property of the latter. Whatever a son might earn by his own exertions, so long as he remained unemanci- pated, was the property of the father. An exception, however, occurred in the case of persons in the military service, and the same privilege was extended to advocates, who might retain whatever they earned in the exercise of their profession, even while subject to parental authority in other respects. By an imperial ordinance, addressed by the Emperors Valen- tinian, Yalens, and Gratian, A. D. 370, to Olybrius, the Pre- fect of Rome, regulations were made in regard to the number 1 Niebuhr, Lect. History of Eome, vol. 2, 23. 8 INTRODUCTION. § 6 of counsel who should be heard on a side ; and if any advocate was assigned by the judge to appear for a party, and declined the task on insufficient grounds, he was to be disbarred.^ The Code Justinian frequently mentions the advocati fisci, who occupied the position, apparently, of government counsel, attorney-general, or queen's counsel, in our times. Their duty was to attend to all cases in which the interests of the crown were concerned, and, except in a few instances, they were not allowed to undertake private causes. Even after they retired from office, they could not, without special license from the emperor, appear against the crown. But while in or out of office, they were allowed to do so in causes where they, or members of their families, were parties. The whole body of advocates was, in the time of Constantine, divided into two classes, called statuti and supernumerarii. The former belonged to a particular corps, and confined their prac- tice to a particular forum, the numbers attending which were limited by law. Thus, in the Court of the Prefect of the City, at Constantinople, eighty were allowed to practice ; in Alexan- dria, fifty, etc. The supernumerarii were those who were at- tached to no particular bar, and supplied such vacancies as occurred among the statuti. Women were not allowed to become advocates, with the ex- ception of those whose fathers were prevented, on account of sickness or infirmity, from conducting their own suits, and who could get no one else to plead for them. But, as a general rule, those who were unable to obtain counsel to defend them, as well as those incapacitated from appearing in their own behalf, by reason of being blind or deaf, had counsel assigned them by the prsetor. When causes were once decided, they could not be reheard on the ground that the trial had proceeded in the absence of counsel ; but if it could be satisfactorily shown that an advo- cate had betrayed his trust, he was punished, and the cause might be heard again. But if the client failed to establish the misconduct of his counsel, he was convicted of calumny, and the previous judgment allowed to stand. iCod. n, VI, 7; Forsyth, Hortensius, 188. § 7 INTRODUCTION. 9 An edict was directed against scurrility and abuse in the con- duct of a cause. Advocates were told to confine themselves to the merits of a case, and not indulge in open invective or covert sarcasm against their opponents. This restriction forms a marked contrast to the license allowed in the days of the Republic.^ Under the early Christian emperors, priests were not allowed to exercise the functions of advocates. Justinian strictly pro- hibited any one in holy orders from pleading in the Courts, whether interested or not, or even where their churches or mon- asteries were interested or not. But afterwards the custom varied in different churches. In those of Rome and Spain the prohibition seems to have continued in force. § 7. Lavryers in the Middle Ages. — When, at length, the Roman Empire had declined and at last fallen, and before feud- alism emerged from the Dark Ages and efEected its important changes in the law of persons and of property, but few traces are to be found either of advocates or of their profession. Languages were undergoing transitions, and feuds and wars were unfavorable to the administration of law. We catch a few glimpses of the existence of advocates among the nations who overran the Roman Empire. A law among the Lombards provided that if any one, through ignorance, was unable to plead his own cause, he was to commence his suit, and if the king or judge saw that he had right on his side, he was then to appoint him a man who was to undertake his cause. Hein- eccius says that advocates were, throughout the German tribes, allowed to plead, by permission of the judge. Hachenberg adds that they were required to conduct their causes in plain and unadorned language, without circumlocution. In the Cap- itularies of Charlemagne they were called clamourers, or clama- tores. After the first crusade, A. d. 1099, Godfrey, Duke of Bouil- lon, or Boulogne, who then attained the throne of Jerusalem, caused to be compiled a code of laws for his new kingdom. These were taken from the various feudal customs and usages 1 Forsyth, Hortensius, 191. 10 INTRODUCTION. § 8 that prevailed in the countries of Western Europe. At the same time he established two secular courts of justice, one called La Haute Cour, the High Court, of which he himself, as suzerain, was the Chief Justiciary ; and the other La Cour des Bourgeois, or Court of the Commonalty, called also the Viscount's Court, presided over by one of his feudal lords who bore that title. The judges of the High Court were, the chev- aliers, who held by tenure of knight's service ; and the judges of the Court of Commonalty were bourgeois of the city or townsfolk. In neither court did the presiding officer take any part in the judgment. His office was like that of the archon at Athens, and praetor at Rome. In the High Court were ad- judged the causes of the great feudatories of the kingdom ; and in the Court of Bourgeois, justice was administered to the commonalty.' The code of laws thus compiled consisted of two collec- tions — both called assizes, one for each court — usually styled the " Assizes of Jerusalem." They were placed in a casket, and deposited in the treasury of the Church of the Holy Sepulcher at Jerusalem, and from this were sometimes called Lettres du Sepulcre. The original copy was destroyed or lost upon the capture of the city by Saladin, A. r>. 1187. Copies, however, probably existed, for the system remained, and a collection of them was edited by Jean d'Ibelin in the early part of the thirteenth century, under the titles of " Assises de la Haute Gour, Livre de Jean d'Lhelin" and ^^ Livre des Assises de la Cour des Bourgeois." These collections may be called the germ of the English common law, and constitute, doubtless, the first treatise on feudal law.^ A mention of these collections is so far relevant to the present purpose in that they provide regulations for the conduct and duties of attorneys and advocates, and contain provisions for the appointment of counsel to defend persons accused of crime. § 8. The bar in France. — Advocates in France have, under the designation of " NoUesse de la Robe" held a prominent position from very early times. From their ranks have been 1 Forsyth, Hortensius, 182-3: 2 Ibid. 194. § 8 INTRODUCTION. 11 taken the magistrates, who, as members of the Parliament of Paris, represented the feudal court and council of the ancient kings ; and in all times, considering the vicissitudes of the country in which they have lived, the changes of dynasties, and the despotism and oppressions of many of the rulers, they have maintained a condition of remarkable and bold independence. To them the Galilean Church owed its successful resistance to the arrogant pretensions and usurpations of the Papal See. They were for a long time the only persons qualified by educa- tion or by temper to dispute, by arguments and by writings, the claims of Eome over the possessions and souls of men. The attacks made by the advocates upon ultramontane doctrines finally spurred the secular clergy to resistance, and the conse- quence, for a long time, was a comparative freedom from papal bondage. The High Court (to which thename Parliament was applied) was the supreme and capital court of justice in France. Some- times the king himself presided, (as it is probable he did in the early times of England^) surrounded on each side by the judges, (conseillers) who sat upon an elevated bench, while below was another bench reserved for the different officers of the court, and as a seat of honor for the senior advocates {anciens avocats). In front were the benches which were occupied by the younger advocates, attorneys, and jtersons inter- ested in the cause that was going on. Malpractices on the part of the members of the court were punished with exemplary severity. In 1348, one of the judges, having falsified some depositions in a case which came before him, was hanged by order of the Parliament. And in 1496 a clerk and councillor was convicted of having made a false report regarding some matters which had been referred to him ; the church made an effort to save him, but stern justice was awarded, not indeed in the same form, but in the shape of the pillory, branding on the forehead, and perpetual banishment. From the fourteenth century the bar of France constituted an order of nobility, and was fully recognised as such. The advocates who attended the Court of Parliament were spoken 1 Hawkins' Pleas of the Crown, 1)0015:2, chap. 1; Forsyth, 203. 12 INTEODTTCTION. § 9 of as an order,i a name which they retained until the Kevolu- tion of 1789. Before any one was admitted as a member, or allowed to enroll his name upon the list, or tableau, which was kept by the Paidiament, he was formally presented by some advocate of long standing, and obliged to take an oath of advo- cacy, his competency being established by previous examination. After the presentation, he entered upon a noviciate of several years of study and attendance on the courts before his name was actually inscribed as an advocate. He was subject to certain rules and prohibitions ; and Mr. Forsyth has collected them, as he informs us in a note,^ from a venerable work written in 1360, called " Le Grand Coutumier General de Pratique, Civil et Canon," by Jean Bouteiller, Con- seiller en la Cour de Parlement. Among other prohibitions he gives us the following : 1. He was not to undertake just and unjust causes alike, without distinction; nor maintain such as he undertook, with trickery, fallacies, and misquotations of authorities. 2. He was not, in his arguments, to indulge in abuse of the opposite party, or his counsel. 3. He was not to compromise the interests of his clients, by absence from court when the cause in which he was retained was called. 4. He was not to violate the respect due to the court, by improper expressions, or unbecoming gestures. 5. He was not to exhibit a sordid avidity of gain, by putting too high a price upon his services. 6. He was not to make any bargain with his client for a share in the fruits of the judgment he might recover. 7. He was not to lead a dissipated life, or one contrary to the gravity and modesty of his calling. 8. He was not, under pain of being disbarred, to refuse his services to the indigent and oppressed. § 9. The modern bar of France.— After the Eevolution, and in 1804, Napoleon decreed the re-establishment of the or- 1 Fournel, Histoire du Parlement, vol. 1, 274, 273. 2 Forsyth's Hortensiua, 215, note. § 9 INTEODUCTION. 13 der of advocates " as one of the means most proper to main- tain the probity, delicacy, disinterestedness, desire of concilia- tion, love of truth and justice, an enlightened zeal for the weak and the oppressed, which are the essential foundations of their profession." In 1810, he issued an imperial ordinance contain- ing a number of rules, for the purpose of regulating " that sal- utary discipline of which advocates showed themselves such zealous guardians in the palmy days of the bar." Among the rights and duties thus prescribed were the following : " We expressly forbid advocates to add their signatures to opinions, pleadings, or writings which are not their own, or which they have not duly considered. We likewise forbid them to make any bargains for their fees, or to compel their ' clients to recompense them before the conclusion of a case, under the penalty of a reprimand for the first offense, and expulsion from the bar, in case it is repeated. " Advocates shall have free scope for the exercise of their oiEce, in the defense of justice and of truth ; at the same time, it is our wish that they should abstain from all inventions in their facts, and from other evil practices, as well as from all useless or superfluous speeches. " We forbid them to indulge in any injurious or offensive personalities against parties to whom they are opposed, or their counsel ; to assert any fact seriously affecting the honor or rep- utation of the opposite party, unless the necessity of the case re- quires it, and they have express written instructions to that ef- fect from their clients, or the attorneys of the latter." The Criminal Code of Procedure of France prescribes sub- stantially the following form of procedure : On the day fixed for the opening of the assize court, twelve jurymen must take their seats opposite the accused. If the trial is likely to be pro- tracted, one or two supplemental jurymen are taken, by lot, from the jury panel, who attend to the evidence, and supply the place of any juror or jurors who may not have suflicient strength to sit out the trial. The president interrogates the prisoner as to his name, age, profession, residence, and place of birth. He must then notify the counsel of the prisoner that he is to say nothing contrary to his conscience^ or to the re- spect due to the laws, and that he ought to express himself with 14 INTRODUCTION. § 9 decency and moderation. In the next place, he must, standing and uncovered, address the jury in the following terms : " YoU shall swear and promise, before God and before men, to examine with the most scrupulous attention the charges which shall be preferred against the prisoner (naming him) ; to betray neither the interests of the accused, nor of society, which accuses him ; to communicate with no one until after you have given your verdict; to listen neither to hate, nor malice, nor fear, nor favor ; to decide, after hearing the charges and the defense, according to your conscience and intimate conviction, with the impartiality and firmness which belongs to a man who is just and free." Upon this, each of the jury, being separately called on by the president, raises his hand and says : " I swear." The officer of the court then reads the commission or decree of the Cour Royale, remitting the case to the assizes, and also the indictment, acte d^ accusation. The attorney-general then opens the case against the prisoner, and gives in a list of the witnesses who are to be examined, both for the crown and for the prisoner ; and their names, professions, and places of resi- dence must be notified twenty-four hours at least, to the pris- oner, before their examination on the part of the crown, and the same notice must be given to the crown on the part of the pris- oner. Each witness is sworn to speak without fear or hate, and the truth, and nothing but the truth. After each deposition has been given, the president must ask the witness if it is of the prisoner at the bar that he has heard such and such a thing. The witness is not to be interrupted ; but the accused or his counsel may, after he has given evidence, interrogate him through the medium of the president, and say, as well against him as his testimony, whatever may conduce to his defense. The president may question the witness and the prisoner on all points which he deems necessary to the elucidation of the facts of the case. The other judges and the attorney-general may do the same, on first obtaining permission from the presi- dent ; "but the prosecutor himself can put such questions only through the medium of the president. When the witnesses for the prosecution have been heard, the prisoner brings forward his own, of whom ,he has previously furnished a list, and who can depose either with reference to the charges mentioned in the § 10 INTRODUCTION. 15 indictment, or to his character as a man of honor and probity ; but no witness is admissible who is related to the prisoner in either the directly ascending or descending line, nor is his brother, or sister, or wife, or husband, even after divorce, nor an informer, to whom the law assigns a reward. But the ob- jection may always be waived by the crown or the prisoner, where the evidence is offered by the other side. When facts are deposed to, tending to convict the jirisoner, it is the duty of the president to call upon him to say whether he admits their truth. When the witnesses have given their evidence, the prose- cutor or his counsel and the attorney-general are to be heard in support of the indictment; and the prisoner or his counsel may then make their defense. Upon this, the prosecutor and the attorney-general may reply, but in all cases the prisoner or his counsel is to have the last word. It is then the duty of the president to sum up, and he in- forms the jury that if a majority of them think that there ex- ist, in favor of accused, extenuating circumstances, though they find him guilty, they are to announce their verdict in the follow- ing terms : " In the opinion of the majority there are extenuat- ing circumstances in favor of the prisoner." He also informs them that they are to give their votes by ballot, and that if the accused is found guilty by a majority of only one vote, they must state this upon the delivery of their verdict. They then retire to the jury-box, and on their return the president asks them for their verdict, upon which the foreman rises and plac- ing his hand upon his heart, says : " Upon my honor and con- science, bfefore God and before man, the verdict of the jury is — ' Yes, the prisoner is guilty ' ; or, ' No, the prisoner is not o-uilty.' " At the same time he delivers to the president the verdict in writing, signed by himself. In the trials in the French courts, hearsay evidence, lead- ino- questions, and self-crimination are allowed to an extent be- wildering to the English or American lawyer. § 10. Avoues and avocats. — There are two classes of law- yers now practicing before the Courts of First Instance and of Appeal, viz: avoues, or attorneys, and avocats, or advocates. The avocats of the Cour de Cassation discharge at tlie sasne 16 INTRODUCTION. § H time the functions of the avoues. The avouSs of the Tribu- nals of the First Instance are distinct from those of the Courts of Appeal, while there is but one body of avocats for the two jurisdictions known as avocats d la Cour d'Appel. The employment of an avoue is necessary, (except that in theory a party may defend himself, or select whom he pleases to defend him) while that of an avocat is purely voluntary. The former is the agent and representative of the party, the latter is not. The former directs the proceedings, furnishes or receives all communications requisite for the preparation of the case, and lays before the court the demands of his client. The latter argues the cause and gives consultations. The analogy between the English attorneys and barristers is plain — the avoue being the counterpart of the English attorney, and the avocat corres- ponding to the English barrister.^ § 11. Qualifications for admission to tlie bar. — ^In order to be admitted as an avocat, the candidate must have obtained the degree in law called " licence en droit" for which three years' terms or attendance on the lectures of the law school, or Faculte de Droit, are necessary. These lectures comprise a course of instruction in the history of law ; Roman law ; the law of nations ; common or uncodified law ; the French Civil Code and Code of Procedure ; criminal, constitutional, admin- istrative, and commercial law ; and political economy. Admin- istrative law is that whose object is to establish the relations of the executive power and its agents toward individuals, commu- nities, and public establishments. Previously to all this, he must have obtained the degree of bachelor of letters, after passing an examination in French, Latin, and Greek composi- tion, as well as in literature, history, and philosophy. He must also have passed three years in attendance on the courts before he can be entered on the rolls and admitted to practice. To be received as an avoue the candidate must in like manner have obtained the degree of bachelor of letters, and then have followed for a year the course of criminal legislation, and of civil and criminal procedure, and have passed an examination before 1 11 Am. Law Eev. 679. §§ 12-14 INTRODUCTION. 17 the professors of the law school. Pie must also have passed five years as a clerk in the office of an avoue in order to be admitted as an avoue of a cour d'appel?- § 12. Appointment of attorneys. — The cs-yoMes are limited in number, and are appointed by the chief of the executive power upon the presentation of the avoue; retiring in favor of the nominee, or upon that of the legal representatives of a de- ceased avoue. High prices are paid for these positions. The number of attorneys and practicing advocates is very small in proportion to the population— the total number of avoue s and avocats of all the courts in Paris, in, 1874, being only 904. Adding to this number 123 notaires, who are public function- aries invested with important privileges, but do much of the work which in the United States is done by attorneys, and there remains a total of 1,027 educated lawyers ; while in the city of New York, with a population less than half that of Paris, there are over 3,500 persons practicing as attorneys and coun- sellors. § 13. Discipline and independence of the bar. — Both avoue s and avocats are independent of the governing power. The Chamhre des Avoues, at the head of which is a president, and the Conseil de Discipline des Avocats, presided over by the hdtonnier, are charged with the duty of maintaining discipline and punishing misconduct among the members of their respect- ive orders. The punishments consist of recall to order, censure, public reprimand, expulsion from the Chamhre des Avoues, and in the case of avocats, temporary suspension, or even striking from the rolls. There is a third class of men, hommes d'affaires, not properly lawyers, but rather collection agents, who may, if provided with a special power, represent their clients before the tribunals of commerce, or the juges de paix? § 14. Advocates in England. — The conduct of advocates in England, as distinguished from attorneys, was never subject to much legislative interference ; but there is an ancient statute, 111 Am. Law. Bev. 679. ^ n)ia. gSl. A. & C— 2. 18 INTEODTJCTION. § 1^ which was passed in 1275, in the reign of Edward I, by which it was provided that " if any sergeant, (countor) or others, do any manner of deceit or collusion in the king's court, or con- sent unto it, in deceit of the court, or to beguile the court, or the party, and thereof be attained, he shall be imprisoned-for a year and a day, and from thenceforth shall not be heard to plead in that court for any man ; and if he be no countor, he shall be imprisoned in like manner by the space of a year and a day at least ; and if the trespass shall require greater punish- ment, it shall be at the king's pleasure." Some further regula- tions were laid down in the " Mirroir des Justices," written by Andrew Home, who is supposed to have lived in the reign of Edward II. Previously to 1695, in criminal trials, for treason and felony, even where life was concerned, the prisoner at the bar could not have counsel in matters of faot,^ but only when some point of law arose for discussion, proper to be debated, and this the judges were to decide beforehand, as the cases arose- before them ; and they often refused all the assistance prayed for by the prisoner.^ The chief reason for this rule was that the court was counsel for the prisoner — ^but this often was rather theoretical than practical ; indeed, it often happened in English history that the court was a powerful advocate against the de- fendant.^ It was not until 1695 that a statute was passed, after much opposition, the 7 Will. Ill, chap. 3, entitled " An Act for Eegu- latlng of Trials in Cases of Treason and Misprision of Treason," which provided, among other things, that any person accused and indicted, arraigned, or tried for high treason, whereby any corruption of blood may be made to any such offender or his heirs, or for misprision of such treason, " shall be received and admitted to make his full defense by counsel learned in the law ; and in case any person so accused or indicted shall desire coun- sel, the court before whom he shall be tried, orsome judge of 1 Hawkins' Pleas of the Crown, book 2, ch&p. 39; Emlyn's Preface to State Trials; note to State Trials, 5, 468; Stepliens' Com. 4, 423. 2 Trial of Lord Eussell, 9 State Trials, 578; Trial of Duke of Norfolk, 1 State Trials, 963; Trial of Col. Lilburne, 4 State Trials, 1329; Trial of Sir Henry Vane, (i State Trials, 153; Trial of Algernon Sidney, 9 State Trials, 817. 3 See Trial of Alice Lisle, 11 State Trials, 322. § 14 INTRODUCTION. 19 that court, shall immediately, upon his request, assign to him such and so many counsel, not exceeding two, as he shall de- sire, to whom such counsel shall have free access at all season- able hours." -But it was declared by section twelve that the statute should not extend to any impeachment or other proceed- ings in Parliament, nor to any indictment of high treason for counterfeiting the great or privy seal, or coin of the realm. . In 1747, the provisions of the statute of William III, regard- ing the assignment of counsel, were extended to parliamentary impeachments in cases of high treason, and misprision of trea- son ; but still in no trials for felony, and those cases of inferior treason which concerned the coin of the realm, and the seals, whether the offense were clergyable or not, was a prisoner allowed counsel to plead his cause to the jury. But at last, by the 6 and 7 William IV, chap. 114, it was enacted that all persons tried for felonies should be admitted, after the close of the case for the prosecution, to make full answer and defense thereto, by counsel learned in the law, or by attorneys in courts where attorneys practice as counsel.^ The preamble announces the principle, " that it is just and reasonable that persons accused of offenses against the law should be enabled to make their full answer and defense to all that is alleged against them." " It was," says Blackstone, " a settled rule at common law, that no counsel shall be allowed a prisoner upon his trial, upon the general issue in any capital crime, unless some point of law shall arise proper to be debated.^ A rule which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner — that is, shall see that the proceedings against him are legal and strictly regular)^ seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man which yet is allowed him 1 See also 28 Vict, cliap. 18. 2 2 Hawk P. C. 400. 3 Sir Edward Coke gives another additional reason for tiis refusal : " Because the evidence to convict a prisoner should be so manifest as it could not he con- tradicted"; which Lord Nottingham (when High Steward) declared (3 St. Tr. 726) was the only good reason that could he given for it. 20 INTEODUCTION. § 1^: in prosecutions for every petty trespass? Nor, indeed, is it, strictly speaking, a part of our ancient law ; for the Mirror ^ having observed the necessity of counsel in civil suits, who know how to forward and defend the cause, by the rules of law and customs of the realm, immediately afterward subjoins, " and more necessary are they for defense upon indictments and appeals of felony than upon other venial causes." And the judges them- selves are so sensible of this defect that they never scruple to allow a prisoner counsel to instruct him what questions to ask, or even to ask questions for him, with respect to matters of fact; for as to matters of law, arising on the trial, they are entitled to the assistance of counsel. But, lest this indulgence should be intercepted by superior influence in the case of state criminals, the legislature has directed, by statute, (7 William III, chap. 3) that persons indicted for such high treason as works a cor- ruption of the blood, or misprision thereof, (except treason in counterfeiting the king's coin or seals) may make their full defense by counsel, not exceeding two, to be named by the prisoner and assigned by the court or judge ; and the same indulgence, by statute, (20 Geo. II, chap. 30) is extended to parliamentary impeachments for high treason which were ex- cepted in the former act." ^ The prisoner was not allowed counsel to plead his cause before the jury in any felony, whether Capital, or within the benefit of clergy ; nor in a case of petty larceny. But in mis- demeanors the prisoner or defendant was allowed counsel as in civil actions ; but even here the defendant could not have the assistance of counsel to examine the witnesses, and reserve to himself the right of addressing the jury.^ Perhaps the maxim that the judge was counsel for the prisoner signified nothing more than that the judge should take care that the prisoner did not sufEer from the want of counsel. The judge was counsel only for public justice, and to promote that object all his inquiries and attention should have been directed.* 4 1 Chap. 3, sec. 1. .2 4Blackst. Com. *335. 8 Bex V. White, 1 Byan & M. 166; 3 Camp. 98. arty injured.^ And counsel guilty of deceit or collusion are punish- able by the Statute "Westminster 1, 3 Edw. I, chap. 28, with imprisonment for a year and a day, and perpetual silence in the courts^ — a punishment still sometimes inflicted for gross misdemeanors in practice." ^ The text of Blackstone has been given intact, as illustrating the condition of things in England at the time he wrote. It now becomes necessary to point out the modifications requisite to be made in the text before it can be regarded as a correct exposi- tion of present law, and to note the changes that have occurred since that time. The degree of serjeant was deprived of its most profitable, if not most important, advantage, (exclusive au- dience in the Court of Common Pleas)* by the Statute 9 and 10 iTac. Abu, lib. 11. 2 Brook V. Montague, Cro. Jac. 90; see also, as establishing the correctness of this position, Hodgson v. Scarlett, Holt N. P. 621; 1 Barn. & Aid. 232; 1 Saund. Rep. 130. The puiblioation of the counsel's statement by a third party may, however, expose such a third party to an action. (Flint v. Pike, 4 Barn. &. C. 473.) 3 Hughes V. Scirace, 2 Atk. 173; 3 Com. B. N. S. 804. * See, as to their former privileges, The Serjeants' Case, 8 Scott, 430; 8 D. P. C. 2G8; 6 Bing. N. C. 187, 232. 48 DEFINITIONS AND CLASSIFICATIONS. § 29 Vict., chap. 54, which extended to all barristers the privileges of Serjeants in the Court of Common Pleas. The Serjeants had been limited to fifteen in number, and had the monopoly of the practice in that Court. A bill was introduced into Parliament in the year 1755, for the purpose of destroying this monopoly, but it did not pass. In 1834, a warrant under the sign-man- ual of the crown was directed to the judges of the Common Pleas, commanding them to open that court to the bar at large, on the ground that it would tend to the general dis- patch of business. This order was received, and the court obeyed. In 1839, the matter was brought before the court by the Serjeants, when it was decided that the order was illegal, Tindall, C. J., declaring that " from time immemorial the Ser- jeants have enjoyed the exclusive privilege of practicing, plead- ing, and audience in the Court of Common Pleas. Immemo- rial enjoyment is the most solid of all titles ; and we think the warrant of the crown can no more deprive the serjeant, who holds an immemorial office, of the benefits and privileges whicli belong to it, than it could alter the administration of the law v/ithin the court itself." ^ Afterward, however, the Statute 9 and 10 Vict., chap. 54, as already stated, extended to all barris- ters the privileges of Serjeants in the Court of Common Pleas. In regard to preaudience, by the king's mandate, December 14th, 1811, the king's attorney and solicitor-general were or- dered to have a place and audience before the king's premier- serjeant. The various statutes mentioned by Blackstone as regulating- attorneys have been consolidated and amended by the Statute 6 and 7 Vict., chap. 73,^ which prescribes the conditions of their admission, the time and mode of their preliminary service as a clerk under articles, and the examinations which ha^e to be passed before they can receive their certificate, a document which entitles the holder to admission in all the courts of the kingdom. The admission of the judges of the common-law courts of Westminster into the order of Serjeants before advancement to 1 Serjeant's Case. See also 10 Bing. 571; Bing. N. C. 187, 233, 235. 2 7 and 8 Vict. chap. 86; 14 and 15 Vict. chap. 88. See also 23 and 24 Vict, eliap. 127; 33 and 34 Vict. chap. 28; 35 and 36 Vict. chap. 81. § 29 DEFINITIONS AND CLASSIFICATIONS. 49 the bench was rendered unnecessary by the English Judicature Act of 1873. The order of preaudience in the courts is now : 1. The attor- ney-general. 2. The solicitor-general. 3. The regnant queen's premier serjeant, so constituted by special patent, when ap- pointed. 4. The regnant queen's ancient serjeant, or the eldest among the regnant queen's Serjeants, when appointed. 5. The regnant queen's Serjeants. 6. The regnant queen's counsel and those barristers who have obtained patents of precedence, ac- cording to the precedence assigned to them. 7. Serjeants at law. 8. The recorder of London. 9. Advocates of the civil law. 10. Barristers.^ The barristers or Serjeants who have received letters-patent of precedence, and the queen consort's attorney and solicitor- general, when the sovereign is a king, rank promiscuously, and, together with the queen's counsel, sit within the bar of the re- spective courts.^ For gross misdemeanors in ])ractice, on the part of barristers, the course usually now resorted to is for the benchers of the inn of court to which the offender belongs to disbar him.^ Students who do not wish to be called to the bar may obtain permission to practice under the bar. This class of practitioners have hitherto been called special pleaders or equity draftsmen, according as they prepared pleadings in the common law or equity courts, or conveyancers, if they prepared deeds. These distinctions are also in general preserved after the call to the bar. Special pleaders, equity draftsmen, and conveyancers who have taken out certificates to practice, under the bar, and therefore are not counsel, may recover their reasonable charges for business don» by them.* " Advocates or attorneys," says Blackstone, " that betray the cause of their client, or, being retained,^ neglect to appear at 1 3 Kerr's Blackst. Com, 26, note. 2 Ibid. As to the nature of the inns of court, see Rexw. The Benchers of Lincoln's Inn, 4 B. & 0. 855. As to the terms to be kept, and the examinations, see the regulations Issued by these societies. Ante, Introd. 3 3 Kerr's Blackst. Com. 28. * Boucher v. Norman, 3 Barn. & C. 744. s L. 183; 3 Blackst. Com. 165. A. & C— 4. 50 DEFINITIONS AND CLASSIFICATIONS. § 29 the trial, by which the cause miscarries, are liable to an action on the case for a reparation to their injured client." Blackstone cites Finch as authority for this position ; but Finch does not sustain him to the full extent. Finch simply lays down the law in the case of an attorney for the tenant in a real action making default ; and F. N. B. 96, whicli is his authority, goes no fur- ther. As the advocate can maintain no action for his fees, there would be some hardship in exposing liim to an action for what his client might consider want of proper zeal, industry, or knowledge in the conduct of his cause. In two cases at nisi prills. Lord Kenyon held such actions not maintainable. ^ In the United States there is no distinction between attorneys and advocates. The same persons fulfill the duties of both. Hence, no difference is made between their rights to recover compensation for services in the one capacity or the other. The attorney is liable for want of ordinary care and skill. When he disobeys the lawful instructions of his client, and a loss ensues, for that loss he is responsible. But a client has no right to control his attorney in the due and orderly conduct of a suit ; and it is his duty to do what the court would order to be done, though his client instruct him otherwise.^ Barristers cannot serve as articled clerks, for the purpose of being admitted as attorneys, without being disbarred.^ The courts cannot interfere in questions as to their retainers.* A barrister, by accepting a brief in the usual way, under- takes a duty, but does not enter into any contract, express or implied. No action lies against him when emploj^ed to conduct a cause at nisi prius, if he enters into a compromise and with- draws a juror, even though contrary to his client's instructions, provided it is done hona fide. The conduct and control of the cause are left to him. But he has not, by virtue of his retainer, 1 3 Blackst. Com, 165, note by Coleridge; Fell . . Brown, Peake, 9B, 131; Turner V. Phillips, Ibid. 122-166. 23 Blackst. Com. 16,"). note by Sharswood; Gilbert r. AVilliams, ,S JIass. ~u: Holmes r. Peck, 1 R. I. 245; Cox c. Sullivan, 7 Ga. 144; Cox r. Livingston, 2 M'atts & Sargent, 103; Wilcox ?'. Plumracr, 4 Peters, 172; Anon. 1 AVeud. lOS. 3 In re Batenian, B Q. B. .S,5:! ; 9 ,Jur. 2il ; 14 Law J. Q. B. .SI). See as to barristers practicing in various courts, 15 and 16 Vict., chap. 54, sec. 10; 20 and 21 Ibid.,cliap. 77, sec. 45; chap. 85, sec. 15; 21 and 22 Ibid., cbap. '.15; 22 and 2.S Ibid., chap. 6. * Baylis v. Grout, 2 Mylne & K. 316; Kx parte Elsee, 1 Montague, Gil; Taylor v. Clarke, 13 I. It. C. L. 571. § 29 DEFINITIONS AND CLASSIFICATIONS. 51 any power over matters collateral. The barrister, acting in good faith, and with a single view to the interests of his client, is not responsible for mistake, error, or indiscretion of judgment. But a barrister may be responsible on an express agreement, or if he acts toward his client with fraud, malice, or treachery.^ An action will not lie against a barrister for words spoken by him as counsel in a cause pertinent to the matter in issue. But although counsel, in the discharge of their duty, are privileged to utter matter injurious to individuals, the subsequent publica- tion of such matter is unlawful.^ A party in a matter in court had kept a sum of money which, by his contract, he ought not to have kept ; counsel, in reference to this matter, used the lan- ffuage : " This gentleman has defrauded lis." The words were held not actionable,^ and not irrelevant to the matter before the court. A barrister may be punished for contempt of court, even for language professedly used in the discharge of his functions as advocate ; as where, on a trial for felony, the counsel for the prisoner, whose mode of conducting the case had been remarked upon by the foreman of the jury, in his address to the jury uttered words which reflected upon the foreman, and being re- quired by the judge to withdraw them, refused, and was there- upon adjudged guilty of contempt, and fined; upon motion for a certiorari to remove the order, it was held, that as the words used might have been, and were by the judge adjudged to have been, used to insult the juror, there was no excess of jurisdic- tion, and the appellate court could not interfere.* No action lies against a barrister for misconduct in the man- ao-ement of a cause, nor to recover a fee given to him to argue a cause which "he did not attend;^ nor for negligence in not attending a trial..^ A barrister is privileged from arrest (like others of the profession) whilst in attendance on the courts, and iSwinfeii v. Chelmsford, 5 Hurl. & K 8!!0; 29 Law J. Exch. 382; 6 Jur. N. S. 1035; 8 Week. E. 54.T; 2 L. T. N. S. i06. 2 Hodgson r. Scarlett, 1 Barn. & Aid. 232; Flint v. Pike, 6 Dowl. & R. 528; 4 Barn. & C. 473. a Needam v. Dowlipg, 15 Law J. Common Pleas, (I. 4 Ex parte Pater, 5 Best & Smith, 299; 9 Cox C. C. 544; 10 Jur. N. S. 972; 33 Law J. M. C. 142; 10 L. T. N. S. 376, 5 Fell u. Brown, Peake, 96, 122; Turner u. Phillips, Peake, 122. Mulligan c. MoDonough, 2 L. T. N. S. 136; 5 Irish Jur. N. S. 101. 52 DEFINITIONS AND CLASSIFICATIONS. , § 29 therefore will be discharged if arrested on the circuit,^ and returning from court.^ Advocates conducting causes cannot be examined as witnesses therein, nor can they be heard in their own cases after their own counsel have addressed the court.^ The court will not enforce by attachment an agreement of compromise, made Ijy counsel on behalf of his client, if it is at all doubtful whether the client is bound to perform the agree- ment, nor will a court of equity enforce such a compromise by a specific performance.* But where there had been a conference between a party to an action and his counsel and attorney, as to the terms of compromising such action, and there was evidence that the client had authorized his counsel to do the best for him he could, and the counsel afterward settled such action in court whilst the client was actually present, the court refused to set aside the order of nisi prius made according to the terms of such settlement, notwithstanding the client made an affidavit that the action was settled without his authority, and that, al- though present in court, he did not understand what was going on.^ Where a jury had given excessive damages, and the court was reluctant to interfere to set aside the verdict, but recom- mended a compromise, counsel had authority to consent to such a compromise in the absence of their clients, such consent being considered within their ordinary authority.^ It is within the general authority of counsel retained to con- duct a cause, to consent to the withdrawal of a juror, and the compromise, being within the counsel's apparent authority, is binding on the client, notwithstanding he may have dissented, 1 In re Hippesley, 1 H. Black. 63(1; In re Oxfordshire, 2 Car. & K. 200; In re Kent, 2 Car. & K. 197; 15 Law J, Q. B. 268. 2 Luntly V. Nathaniel, 2 D. P. C. 51 ; 1 Cromp. & M. 579: Newton v. Harland, 8 Scott, 70; Rubenstein v. , 10 I. C. L. E. 386. 3 Dunn );. Packwood, 1 B. C. R. 312 ;. 11 Jur. 242 ; Stones v. Bacon, i Dowl. & L. 393; .1 B. C. E. 248; 11 Jur. 44; 16 Law. J. Q, B. 32; Newton v. Chaplin, 10 Com. B. 356; 14 Jur. 1121; 19 Law J. Com. P. 374; but see Nicholson ... Styles, 2 Ex. 213; 12 Jur. 681; 17 Law. J. Ex. 229. 7 ; 3(5 and 39 Vict., cliap. 77, sec. li. §35 DEFINITIONS AND CLASSIFICATIONS. 59 § 35. Use of terms in this work. — In the following pages the author has discovered the necessity of selecting and adopt- ing some general term, that will apply to all members of the legal profession, and that will be understood to so apply, when- ever the law relative to the profession is discussed, without ref- erence or restriction to any particular class or branch of it. As has been seen, the term " barrister " is un English name for a particular branch of the profession, and includes only those practicing at the bar, or who try causes, as distinguished from the English attorneys and solicitors, who do not. The term "advocate " is a term of similar import, and has therefore been rejected as a generic term. The term " solicitor " has in mod- ern times, in England, been applied to the class who fulfill in the courts of equity, and in chancery proceedings generally, the same duties as the English attorney does in the courts of common law. Its meaning is, therefore, limited, and it cannot properly be applied to the entire body of lawyers. " Counsel " or " counsellor " has, in England, much the same signification as " barrister." The words " serjeant," " proctor," " procu- rator," etc., are obviously words of still less scope, and manifestly out of the question. To coin a word would probably not be acceptable to the profession. To make use of a paraphrase is a cumbrous mode of expression, giving additional labor to an author, and inconvenience to the reader. In this predicament — one which well illustrates the oft-lamented poverty of the English language as regards technical and precise terms — the choice seemed to be narrowed down to the selection of one of the two terms, " lawyer " or " attorney at law." To each of these there are objections, but they are of less inherent import- ance than the objections to the other terms mentioned. Against the phrase " attorney at law " it may be said that in England, though not generally in the United States of America, the term '' attorney " has been used in contradistinction to their brethren of the same grade in the courts of equity — the solicit- ors. It may also be said, it has been used in contradistinction to the orders of the profession higher than either the attorneys or solicitors, viz., the barristers and serjeants. Both of these propositions are true. To use the term " attorney " alone may be open to the further objection that it might include attorneys in. 60 DEFINITIONS AND CLASSIFICATIONS. § 35 fact ; but this last is not thought a serious obstacle, as it will not be deemed a violent presumption that the reader will exclude attorneys in fact from his mind in a work wholly occupied with the law relative to the members of the legal profession. Without reference to custom or fashion, perhaps the term " lawyer " would be the most comprehensive, and etymologi- cally the most correct of any ; but here steps in the very com- prehensiveness of the term as an objection ; for lawyers are often judges, or, to transpose the phrase, it is very often that judges are lawyers ; and it is not of the law governing the judiciary that we desire to speak. Besides, while a layman generally speaks of a member of the bar as a lawyer, the latter generally prefers, for some reason, or from force of habit, or custom without a reason, to style himself, in America, an attor- ney, or counsellor at law, or both ; or simply counsel, or an advocate, etc., etc. ; and in England he calls himself whatever he is, strictly speaking — a barrister, an attorney, a solicitor, or a proctor.i The term " attorney," or " attorney at law," (and in the ensu- ing pages the latter is always meant by the former term with- out more) has, therefore, seemed the least objectionable in com- mon use. When the word is used in the restricted English sense, there will always be found something in the context to denote that it is used as signifying an English attorney, and not generally ; but otherwise it will mean, as its etymology indi- cates, any member of the legal profession employed in " the turn, place, or stead of his client " in legal proceedings and suits in court, be he attorney, counsellor, advocate, barrister, solicitor, or proctor. Besides, in America, the English distinctions have not been generally preserved. The common law is made the basis of jurisprudence in nearly all the States. The courts exercise a mixed law and equity jurisdiction. Attorneys and solicitors are both called attorneys, and attorneys fulfill the office of barris- ters and advocates, and vice versa. In one State, liowever, an exception exists : New Jersey has a distinct court of chancery ; ilu many of the State courts of the United States, and in the Federal courts, the license gives him power to practice " as an attorney and counsellor at law, solicitor in chancery, and proctor in admiralty," etc., etc. § 35 DEFINITIONS AND CLASSIFICATIONS. 61 its practitioners are known as solicitors. But in New York, with the destruction of the distinct chancery jurisdiction, the term " solicitor " fell into disuse ; and Story, and other elemen- tary writers, use the term " attorney " in treating of matters both of law and equity. With this authority, and for the above reasons, the term will be so used, except where otherwise plainly indicated. For the sake of variety, the term " lawyer " will not be entirely discarded as a generic term.^ 1 " The term ' attorney at law' may be regarded as comprehending all grades of practicing lawyers. In England, the term ' attorney ' is technically restricted so as to exclude not only solicitors in chancery and proctors in admiralty, but counsel and barristers in proceedings at common law. In the United States, counsel, proctors, and solicitors are governed by the same general rules as attor- neys. The term ' attorney at law ' may, therefore, be used as a general term to cover all cases of persons who are skilled in the law, and who are appointed to represent others in litigation and in legal matters." (Wharton on Agency, sec. 555; Ingraham v. Richardson, 2 La. An. 83S; Trowbridge v. Weir, 6 Ibid. 706.) 62 NATURE OF THE OFFICE^ — QUALIFICATIONS. §§ 36-7 CHAPTER II. THE VOCATION OF THE LAWYER— GENERAL NATURE OF HIS OF- FICE— (JUAIjIPICATIONS. § 36. The lawyer's vocation. § 37. Character of the office. § 38. Test-oath cases in the United States Supreme Court. § 39. And in California. § 40. Who may be attorneys — Admission of women as attorneys. § 41. Taxation of the profession. § 36. The lawyer's vocation. — The first portion of this work will be devoted to a consideration of the I'ocation of the lawyer regarded as a vocation merely, and generally separate and distinct from the subjects arising out of the relation exist- ing between the lawyer and his client. In treating of the voca- tion of the lawyer, the following topics will be reviewed in the order named : 1. The general nature of the vocation, and nature of the attorney's office, and the general qualifications which the attorney must possess. 2. Admission to the bar, and the rules and regulations g-overnina; that admission. 3. Ee- moval and suspension from the bar, and striking from the rolls, including the offenses and im23roprieties which will authorize the infliction of these punishments, and call for the exercise, in these and various other ways, of the summary jurisdiction of the court over attorneys : the removal of these disabilities, and the consequent readmission of the attorney. 4. The privileges, dis- abilities, and liabilities of an attorney -as such, without special reference to the relation between attorney and client, which will be treated of when that relation is reached. The first of the subdivisions above mentioned constitutes the subject-matter of this chapter. § 37. General nature of the vocation. — In considerino- the vocation of the lawyer as a Aocation, and entirely distinct from the professional relation with the client, the most imjjort- § 37 NATURE OF THE OFFICE QUALIFICATIONS. 63 ant question to be answered is, Does the vocation take the character of an office, and if so, what is the nature of the office ? Is it a Government or State office ; is it civil, public, or private ; is it an office of trust, within the meaning of many of the State constitutions ; or is the attorney simply an officer of the court, and no more ? These queries have given rise in America to many grave and able discvissions upon questions of constitutional law. During the Civil War in the United States, many of the State legislatures passed what were known as "Test-oath Acts,'', prohibiting "public officers, civil ofljcers, persons holding offices of trust, etc., from exercising the functions and receiving the emoluments of their offices, imless they should first take an oath, differing somewhat in phraseology in the different States, but very little in substance, and to the general effect that the affiant had given, voluntarily, no aid, comfort, or encouragement to any person or pretended government then in armed hostility or in- imical to the Government of the United States. The first phase of the question came up in considering whether or not an attor- ney was a public officer, or person holding an office of trust or profit within the meaning of the acts. The first legislation did not expressly mention attorneys at law. In West Virginia and Maryland, the language was: "Every person elected, or ap- pointed to any office of trust, civil or military." And the Court of West Virginia held that attorneys were not officers within the meaning of that act, and could not be debarred from practice for a refusal to take the oath.^ In Tennessee, an act^ required the courts to administer the abjuration of the so-called " Ku Klux Klan" to "all officers." And it was held that this language did not apply to attorneys at law, and the courts had no power to require such oath by a general rule ; and if a judge improp- erly excluded an attorney from practice, and refused to put the order on record, or allow an appeal, he was a proper defendant to a mandamus suit, and liable for costs.^ Other States pursued a similar course in construing similar statutes, until it seemed necessary to admit that an attorney at law was not a Govei'nment officer, nor a civil nor public officer, 1 Ex parte Faulkner, 1 ^\^ Va. 269. ■' Statutes, 1868, cbap. 2, sec. 5. 3 IngersoU v. Howard, 1 Heisk. 247; Champion v. State, 3 Cold. 114. 64 NATURE OF THE OFFICE (QUALIFICATIONS. § 38 nor a holder of a public office of trust or profit, within the mean- ing of those acts. This being tolerably well established by the weight of authority, the legislatures went a step further, and passed similar test-oath acts, directly aimed at and naming at- torneys at law as a class. Congress also passed such an act,^ and a rule of the Supreme Court enforced it. Then came the question of the constitutionality of these later acts, and the whole question was fully discussed in the Supreme Court of the United States, and finally decided. We shall dwell on these cases somewhat more than will in future be necessary as regards single cases ; (1) because we have the views of the highest tribunal in America upon the subject, and (2) because of the inherent importance and interest of the subjecft itself. § 38. Test-oath cases in the United States Supreme Court. — The whole matter received a full consideration in the case of Ex parte Garland, 4 Wall. 332, in the Supreme Court of the United States. An act of Congress ^ provided that cer- tain persons should swear or affirm that they had never volun- tarily borne arms against the United States ; that they had not voluntarily given aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto ; that they had neither sought nor accepted, nor attempted to exercise the func- tions of, any office whatever, under any authority, or pretended authority, in hostility to the United States ; and they had not yielded a voluntary support to any pretended government, au- thority, power, or constitution within the United States, hos- tile or inimical thereto, etc. Another act of Congress provided that after its passage no person should be admitted as an attorney and counsellor to the bar in the United States courts without taking and subscribing the oath prescribed in the former act. Garland followed the State of Arkansas in the act of secession from the Union, and was one of her representatives — first in the lower house, and then in the Senate of the Confederate Con- 1 Act of Jan, 24th, 1865, 13 U. S. Stats. i2i. 2 Act of July 2nd, 1802, 13 U. S. Stats. 502; Act of Jan. 24th, 1865, 13 V. S Stats. 424. § 38 NATURE OF THE OFFICE QUALIFICATIONS. 65 gress. July, 1866, he received from the President of the United States a full pardon for all offenses committed by his participa- tion, direct or implied, in the Rebellion. He. produced that par- don, and asked permission to continue to practice as an attorney and counsellor of the court, without taking the oath, which he was unable to take, by reason of the offices he held under the Confederate Government. He rested his application upon two grounds : 1. That the Act of 1865 was, so far as it affected his status in the court, unconstitutional and void. And — 2. That if the act was constitutional, he was released from compliance with its provisions by the pardon of the President. The court held that an exclusion from any of the professions, or any of the ordinary avocations of life, for past conduct, can be regarded in no other light than as punishment for such con- duct. All enactments of this kind partake of the nature of bills of pains and penalties, and are subject to the constitutional inhibition against the passage of bills of attainder, under which general designation they are included. Field, J., said : " The profession of an attorney and counsellor is not like an office created by an act of Congress, which depends for its con- tinuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution. Attorneys and counsellors are not officers of the United States ; they are not elected nor appointed in the manner prescribed by the Con- stitution for the election and appointment of such officers. They are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning, and fair private character. It has been the general practice in this country to obtain this evidence by an examination of the par- ties. In the Supreme Court of the United States, the fact of the admission of such officers in the highest court of the States to which they respectively belong, for three years preceding their application, is regarded as sufficient evidence of the pos- session of the requisite legal learning ; and the statement of counsel moving their admission, sufficient evidence that their private and professional character is fair. The order of admis- A. & C— 5. 66 NATURE OF THE OFFICE QUALIFICATIONS. § 38 si on is the judgment of the court that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct cases therein. From its entry the parties become officers of the court, and are responsi- ble to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for mis- conduct, ascertained and declared by the judgment of the court, after opportunity to be heard has been afforded.^ Their admis- sion or their exclusion is not the exercise of a mere ministerial power." It is the exercise of judicial power,^ and for this reason mandamus will not lie to vacate an order removing an attorney and counsellor. It rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney or counsellor, and for what cause he ought to be removed. The attorney or counsellor, therefore, being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is some- thing more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency. The legislature may undoubtedly prescribe qualifications for the office, to which he must conform, as it may, where it has ex- clusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocations of life. But in the test-oath cases the question was whether that power had been exercised as a means for the infliction of punishment, against the prohibition of the Constitution. That this result cannot be effected indirectly by a State under the form of creating qualifications, was held in the case of Cum- mings V. Missouri,^ and the reasoning by which that conclusion was reached applies equally to similar action on the part of Con- gress. This view was considered strengthened by a considera- ' Ex ijarte Garland, 4 Wall. 378; Ex parte Heyfrou, 7 How. Miss. 127 ; Fletcher V. Daingerfield, 20 Gal. 430. 2 Ex parte Garland, 4 Wall. 378; Ex parte Cooper, 22 N. Y. 81; Ex parte Se- uombe, 19 How. 9. 3 4 Wall. 277. § 38 NATURE or THE OFFICE QUALIFICATIONS. 67 tion of the effect of the pardon produced by the petitioner, and the nature of the pardoning power of the President. The Con- stitution provides that the President " shall have power to grant reprieves and pardons fot offenses against the United States, except in cases of impeachment." (Art. II, sec. 2.) The power thus conferred is unlimited, with the exception stated. It ex- tends to every offense known to the law, and may be exercised at any time after its cqmmission, either before legal proceedings are taken, or during their pendency, or after conviction and judg- ment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. Thie preroga- tive of mercy reposed in him cannot be fettered by any legisla- tive restrictions. As to the effect and operation of a pardon, all the authorities concur. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender ; and when the pardon is full, it releases the punishment, and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before con- viction, it prevents any of the penalties and disabilities conse- quent upon conviction from attaching ; if granted after convic- tion, it removes the penalties and disabilities, and restores him to all his civil rights ; it makes him, as it were, a new man, and gives him a new credit and capacity. There is only this limit to its operation, it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment. The pardon produced by Garland was a full pardon " for all offenses by him committed, arising from participation, direct or implied, in the -Rebellion," and was subject to certain conditions, which were complied with. The effect of this pardon was held by a majority of the court to relieve the petitioner from all penalties and disabilities at- tached to the offense of treason committed by his participation in the Rebellion. He was held to be placed beyond the reach of punishment of any kind. To exclude him, by reason of that offense, from continuing in the enjoyment of a previously ac- quired right, was to enforce a punishment for that offense, not- 68 NATURE OF THE OFFICE — QUALIFICATIONS. § 38 withstanding the pardon. If such exclusion can be effected by the exaction of an expurgatory oath covering the offense, the pardon may be avoided, and that accomplished indirectly which cannot be reached by direct legislation. It was held not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clem- ency. From the petitioner, therefore, the oath required by the Act of January 24th, 1865, could not be exacted, even if that act were not subject to any other objection than the one just stated. The prayer of the petitioner was granted, and a rule of court, which required the oath prescribed by the Act of Jan- uary 24th,- 1865, to be taken by attorneys and counsellors, hav- ing been unadvisedly adopted, was ordered rescinded.^ 1 See Drehman !'. Stefle, 8 Wall. 597. The conclusion reached by the Court in Ex parte Garland had been previously reached in the United States Circuit Courts. (In re Boxter,' by Mr. Justice Trigg ; In re Shorter, District Court of Ala- bama; In re Law, District Court of Georgia.) See contra, Ex parte Magruder, 6 Am. Law Eeg. N. S. 292; Ex parte Hunter, Ibid. 410; 2 W. Va. 122; Ex parte Quarrier, 4 W. Va. 210. See Cohen v. Wright, 22 Cal. 293; Ex parte Yale, 24 Cal. 241. In Alabama, a majority of the Court held that an oath to the effect that the applicant had not engaged or assisted in a duel, was illegal as applied to attor- neys, and the applicant was allowed to practice upon taking the other oaths. (In re Dorsey, 7 Port. 293; Ex parte Garland, 4 Wall. 333; 4 Blackst. Com. 402: 6 Bac. Abr. tit. Pardon; Hawkins, book. 2, chap. 37, sees. 34, 54. See contra, State V. Garesche, 36 JIo. 256. See also, to the same effect, Ex parte Low, 35 Ga. 285; Ingersoll v. Howard, 1 Heisk. Tenn. 247.) The term in a test-oath act " all officers " does not apply to attorneys. ■ The courts have no power to require such oath by a general rule. (Champion i . State, 3 Cold. 114.) The dissenting justices, in Ex parte Garland, held that the right to practice law as a profession is a privilege granted by the law under such limitations or conditions in each State or government as the law-making power may prescribe. It is a privilege, and not an absolute right. The distinction may be illustrated by the difference between the right of a party to a suit in court to defend his own cause, and the right of another to appear and defend for him. The one, like the right to life, liberty, and the pursuit of happiness, i« inalienable ; the other is the privilege conferred by law on a person who complies with the pre- scribed conditions. Every State in the Union and every civilized government has laws by which the right to practice in its courts may be granted, and makes that right to depend on the good moral character and professional skill of the party on whom the privilege is conferred. This is not only true in reference to the first grant of license to practice law, but the continuance of the right is made hy these laws to depend upon the continued possession of those qualities. Attorneys are often deprived of this right, upon evidence of bad moral character, or specific acts of Immorality or dishonesty, showing that they no longer possess the requisite qualifications. No reason was perceived by the dissenting justices why this § 38 NATUKE OF THE OFFICE QUALIFICATIONS. 69 The Supreme Court of the United States held, in Cummings V. The State of Missouri,^ that a legislature may undoubtedly body of men, in their important relations to the courts of the nation, should not ■foe subject to the action of Congress to the same extent that they are under the legislative control in the States, or in any other government, and to the same extent that the judges, clerks, marshals, and other officers of the court are sub- ject to Congressional legislation. Having the power to establish the courts, to provide for and regulate the prac- tice in those courts, to create their officers and prescribe their functions, it was not doubted that Congress had the full right to prescribe terms for the admis- sion, rejection, and expulsion of attorneys, and for requiring of them an oath to show whether they have the proper qualifications for the discharge of their duties. The Test-oath Act was considered to be nothing more than a statute which required of all lawyers who proposed to practice in the national courts that they should take the same oath which was exacted of every officer of the Govern- ment, civil and military. That oath had two aspects, one which looked to the past conduct of the party, and one to Ms future conduct; but both had reference to his disposition to support or to overturn the government in whose functions the attorney proposed to take a part. In substance, he was required to swear that he had not been guilty of treason to that government in the past, and that he would bear faithful allegiance to it in the future. 1st. The act was considered by the dissenting justices to be not in the nature of a bill of attainder. It was not contended that the act worked a corruption of blood, which was one of the leading features of the English bills of attainder. Nor did it contain a conviction or sentence of any designated person or persons. The statute, in their opinion, designated no criminal, either by name or de- scription, declared no guilt, pronounced no sentence, and inflicted no punish- ment on any specific person, and was, therefore, not in the nature of a bill of attainder, and not, therefore, open to any objection based upon its unconstitu- tionality. (Ex .parte Garland, Opinion of Dissenting Justices.) 2d. Upon the question as to whether the act was an ex post facto law, the only doubt was as to the character of the particular case, and not as to the definition of the phrase. The term is applied to criminal causes alone, and not to civil proceedings. (Watson c. Mercer, 8 Peters, 88; Calder v. Bull, 3 Dall. 386; Fletch- er V. Peck, 6 Cranch, 87; Ogden v. Saunders, 12 Wheat. 266; Satterlee v. Mat- thewson, 2 Peters, 380.) The law was not regarded as contemplating the trial of a person for an offense committed before, or the punishment of any person for such an offense. The oath was simply an oath of office, and it was required of all office-holders alike. Taking an oath of office, or not taking one, is not a criminal proceeding. If not a criminal proceeding, the act was not regarded as an ex post facto law. No trial was contemplated for any past offense. The purpose of the act was to require loyalty as a qualification of all who practice law in the national courts; not to impose a punishment for past acts or disloyalty, no more than the requirement that the President of the United States must be a native-born citizen, which is not regarded in the eye of the law as a punishment inflicted on naturalized citizens. The statute was, therefore, regarded by the dissenting justices as within the legislative power of Congress, in its control over the courts and their officers, and not void as either a bill of attainder, or as an ex post facto law. (See also Ex parte Hunter, 2 West. Va. 122.) 1 i Wall. 2T7. 70 NATURE OF THE OFFICE QUALIFICATIONS. § 38 prescribe qualifications for the office, to which the attorney must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of .any of the ordinary avoca- tions of life. But it is not a questionr as to the power of Con- gress to prescribe qualifications, but whether that power has been exercised as a means for the infliction of punishment against the prohibition of the Constitution. This result, the court said, cannot be effected indirectly by a State, under the form of creating qualifications. The States cannot, in effect, inflict a punishment for a past act which was not punishable at the time it was committed ; and deprivation or suspension of civil rights ■ is punishment for such conduct. The case of Cummings went to the Supreme Court of the United States on a writ of error to the Supreme Court of Mis- souri, and involved a consideration of a test oath imposed by the constitution of that State. The plaintiff in error was a priest of the Roman Catholic Church, and was indicted and convicted, in one of the circuit courts of the State, of the crime of preaching and teaching, as a priest and minister of that religious denomination, without first having taken the oath, and was sentenced to pay a fine of fivehundred dollars, and to be committed to jail until the fine should be paid. Mr. Justice Field, in an elaborate opinion, contended for, and announced as the views of the court, substantially the following propositions : A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed " a bill of pains and penalties." Within the meaning of the Constitution of the United States, bills of attainder include bills of pains and penalties. These bills may be directed against a whole class, and may inflict punishment absolutely and conditionally. There was a clause of the Missouri constitution which required priests and clergymen, in order that they might continue in the ex- ercise of their professions, to take and subscribe an oath that they had not committed certain designated acts, some of which were at the time offenses with penalties attached, and some of which were not offenses. This clause constituted a bill of attainder within the meaning of the provisions of. the Federal Constitu- tion ^prohibiting the States from passing bills of that character. § 39 nj^^ture of the office — qualifications. 71 These clauses presumed the parties guilty of the acts speci- fied, and adjudged the deprivation of their right to preach or teach unless the presumption be first removed by their expurga- tory oath. They assumed the guilt, and adjudged the punish- ment conditionally. The prohibition of the Constitution was intended to secure the rights of the citizen against deprivation for past conduct by legislative enactment under any form, hovsr- ever disguised. An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed ; or imposes additional punishment to that then prescribed; or changes the rules of evidence, by which less or different testimony is sufficient to convict than was then re- quired. By the clauses referred to, a penalty was imposed for some acts which were innocent at the time they were commit- ted, and an increase effected of the penalties prescribed for such of the acts as constituted public offenses. They therefore con- stituted an ex post facto law. Although the prohibition of the Constitution to pass ex post facto laws is aimed at civil cases, it cannot be evaded by giving a civil form to that which is in substance criminal.^ § 39. The test-oaths in California. — In 1863, the Legisla- ture of California passed an act entitled " An Act to exclude traitors and alien enemies from the courts of justice in civil cases." ^ The act provided, among other things, that the de- fendant in civil suits might object to the further prosecution of the suit on the ground of the disloyalty of the plaintiff, and that then all proceedings should be stayed until the plaintiff should file in the case an affidavit in the following form : " I, , do solemnly swear that I will support the Constitu- tion of the United States, and the Constitution of the State of California ; that I will bear true faith and allegiance to the Government of the United States, any ordinance, resolution, or law of any State or Territory, or of any convention or legisla- ture thereof, to the contrary notwithstanding ; that I have not, iCummingsj). State of Missouri, i Wall. 277. In tills case, as iu its compan- ion case of Ex parte Garland, Ibid. 333, Chase, C. J., and Swayne, Davis, and Miller, J J., dissented from the judgment. a Statutes 1863, p. 56B. 72 NATURE OF THE OFFICE — QUALIFICATIONS. § 39 since the , [here insert the date of the passage of the act'] knowingly aided, encouraged, countenanced, or assisted, nor will I hereafter, in any manner, aid, encourage, countenance, or assist the so-called Confederate States, or any of them, in their rebellion against the lawful Government of the United States ; and this I do without any qualification or mental reservation whatsoever. So help me God." The same section also provided the form of oath to be taken by a plaintiff who was a foreigner, and had not been admitted to citizenship ; and also that if the affidavit should not be filed within certain periods, prescribed or to be fixed by the court, in case the plaintiff was a non-resident, the case should thereupon be absolutely dismissed, and no other suit should ever be main- tained by the plaintiff, his grantees or assigns, for the same cause of action. It was also provided that no attorney at law should be per- mitted to practice in any court in the State until he should have taken and filed, in the office of the county clerk of the county in which the attorney should reside, the oath prescribed above. For violation of the provisions, he was also considered guilty of a misdemeanor, and was made subject to fine. Section 3 of article 11 of the Constitution of California then pi'ovided that members of the legislature, and " all officers, execu- tive and judicial, except such inferior officers as may be by laAv exempted, shall, before they enter on the duties of their respect- ive offices, take and subscribe the following oath or affirmation : ' I do solemnly swear [^or affirm, as the case may &e] that I will support the Constitution of the United States and the Consti- tution of the State of California, and that I will faithfully dis- charge the duties of the office of according to the best of my ability.' And no other oath, declaration, or test shall he required as a qualification for any office or public trust.' " In California, therefore, the discussion took a peculiar turn. The constitutionality of the " Act to exclude traitors and alien enemies from courts of justice" ^ had been upheld. But it was objected that, when applied to attorneys, it was in conflict with the clause of the State constitution which provided that all 1 Act of April 25th, 1863. § 39 NATURE OF THE OFFICE — QUALIFICATIONS. 73 officers, executive and judicial, should, before entering on the duties of their respective offices, take and subscribe a certain oath to support the Constitution of the United States and the Constitution of the State of California, and to faithfully dis- charge the duties of their offices according to the best of their ability, and proceeding to declare that " no other oath, declara- tion, or test shall be required as qualification for any office or public trust." ^ The appearance of ai attorney in a cause w^aa objected to on the ground that he had not taken the test-oath prescribed in the State statute. He admitted he had not, but replied that under the clause in the constitution above referred to, he could not be compelled to. The court said : " The terms ' office ' and ' pub- lic trust,' as used in section 3, article 11, of the State constitu- tion, are nearly synonymous — at least the term ' public trust ' is included in the more comprehensive term, ' office.' Those duties and responsibilities of a public character that are temporarily or specially devolved upon persons, may be more appropriately denominated public trusts than offices. The persons discharging such duties, or assuming those responsibilities, are officers. " The form of the oath prescribed by the constitution, as the only oath to be taken by officers and persons executing public trusts, the last part of vi^hich is, ' That I v^rill faithfully dis- charge the duties of the office of according to the best of my knovy^ledge and ability,' clearly indicates that the person who executes a public trust was deemed by the constitution to be an officer. " The terms ' office,' ' office and public trust,' as employed in the constitution, have relation only to those persons and duties that are of a public nature. This subject was considered by the Supreme Court of New York, (20 Johns. 492 ; see Woods' Case, 1 Hopk. Ch. 6 ; Seymour v. Ellison, 2 Cowen, 13) in the matter of oaths to be taken by attorneys and counsellors (20 Johns. 492) in which a question arose, whether the act to sup- press dueling, passed in 1816, had been repealed by the consti- tution adopted in 1821. The oath required by that constitution was practically the same as that in the California constitution, 1 Constitution of California, art. 11, sec. 3. 74 NATURE OF THE OFFICE QUALIFICATIONS. § 39 and was prescribed for the same class of officers. The act to suppress dueling required every officer, (with certain exceptions) and every person who should be admitted as an attorney, coun- sellor, or solicitor, to take the oath that he had not been engaged in a duel, etc. Mr. Justice Piatt in that case says : ' The point is simply whether an attorney or counsellor holds an office of public trust, in the sense of the constitution. * * In my judgment, an attorney or counsellor does not hold an office, but exercises a privilege or franchise. As attorneys or counsellors they perform no duties on behalf of the government — they exe- cute no public trust.' " The California court, in Ex parte Yale, held that an officer is a, person commissioned to perform any public duty, and that an attorney at law is not such an officer, in the constitutional sense of the term, and does not hold a public trust. The courts of Alabama, Virginia, New York, and South Carolina support the same side of the question.^ Thus far the California court moved in parallel lines with the courts of sister States, but it proceeded to say : " The manners, terms, and conditions of the admission to practice of attorneys, and of their continuing in practice, as well as their powers, duties, and privileges, are proper subjects of legislative control to the same extent, and subject to the same limitations, as in the case of any other profession or business that is created or regu- lated by statute." The State constitution being merely a restriction upon legis- lative power, and there being no provision of the constitution directly restricting the legislature from exercising plenary con- trol over the qualifications, admission, oath, or duties of attor- neys at law, and none arising by implication, the California court considered that the legislature might lawfully require, as a con- dition to their admission to practice, or their continuance to prac- tice, the taking of the oath prescribed in the act under consider- ation, or at their pleasure might dispense with all conditions and oaths. The applicant was therefore denied permission to prac- 1 Dorsey's Case, 7 Port. 293; Leigh's Case. 1 Munf. 468; Cooper's Case, 22 N. Y. 84; Byrne v. Stewart, 3 Desaus. Eq. 4156. § 39 NATURE OF THE OFFICE QUALIFICATIONS. 75 tice until such time as he should see fit to take the oath men- tioned in the act.^ It will be observed that the California court, agreeing with the weight of authority elsewhere, that an attorney is not a public officer, nor a holder of an office of trust, arrived at a dia- metrically opposite conclusion as to the right of the legislature to impose such restrictions upon a practicing attorney. While much of the reasoning in Ex parte Yale is in consonance with what must now be regarded as an established principle in the Supreme Court of the United States and other courts, the con- clusion reached is opposed to it. An attorney, then, is not a civil, governmental, or public officer ; he is not a holder of an office of public trust, within the mean- ing of the constitutions. He is simply an officer of, the court.^ i Ex parte Yale, 24 Cal. 241 ; Cohen v. Wright, 22 Oal. 324. See Sta^e v. Garesche, 36 Mo. 256. 2 Attorneys of record being officers of the court, their signatures are judicially- known to the court, and need not be proven. (Strippelman v. Clark, 11 Tex. 298.) Appointment of counsel — Liability of a county.— In criminal prosecutions, the ac- cused has the right to be heard, and to defend by himself and counsel; and the court will, in case of the inability of the accused to obtain counsel, appoint counsel f* him, and compel counsel, as an officer of the court, subject to its authority, to defend the accused against unjust conviction. The law confers on licensed attorneys rights and privileges, and with them imposes duties- and obli- gations, which must be reciprocally enjoyed and performed. Tlie attorney but performs an official duty, for which no compensation is provided. (Edgar Co. V. Mayo, 8 111. 82; Vise «. Hamilton, 19 HI. 78.) But in criminal prosecutions the people are the prosecutors, not the county, and counties are not liable. The county does not employ the counsel. There is, therefore, no implied promise to pay on the part of the county. It has been held in Missouri that an additional license may be imposed upon an attorney. In Simmons v. Missouri, 12 Mo. 268, there was a criminal indictment against an attorney for practicing without an additional license, the same being in the nature of an additional tax on their incomes. The law imposing the tax was held constitutional; nor was it considered to impair the obligation of contracts. A license to practice law, granted to an individual by a judge, cannot be con- strued a contract, vesting such individual with rights which the legislature can- not interfere with. None of the essential elements of a contract are to be found in a license to practice law. There is no engagement between the State and the applicant for license that he will follow the practice of the law for a livelihood. No legal con- sideration is paid the State for the license. The grant of a license is a mere naked grant of a privilege without consideration, and which the applicant may or may not, at his option, avail himself of. Therefore, the State may revoke the privilege granted, or may impose such conditions upon its exercise as are deemed proper or demai/ded by the public interest. (Simmons v. State, 12 Mo. 268; Bgan v. Charles County Court, 3 Har. & McH. 169.) 76 NATURE OF THE OEFICE QUALIFICATIONS. § 40 § 40. Who may be attorneys— Admission of women as attorneys. — The question as to who is eligible to hold the position of attorney at law is one generally settled by local legis- lation or rules of court. The right of women to practice law has, however, received the attention of the Supreme Court of the United States. Mrs. Myra Bradwell, residing in the State of Dlinois, made application to the judges of the Supreme Court of that State for a license to practice law. So far as the record showed, her only disqualification was her sex. The statute of Illinois on the subject of admission to the bar enacted that no person should be permitted to practice as an attorney or counsellor at law, etc., without having previously obtained a license for that purpose from two of the justices of the Supreme Court, which license should constitute the person receiving the same as an attorney or counsellor 'at law, and should authorize him to appear in all the courts of record within the State, and there to practice as ah attorney and counsellor at law according to the laws and cus- toms thereof. On Mrs. Bradwell's application first coming be- fore the Illinois court, the license was refused ; and it was stated as a sufficient reason that in Illinois the applicant, " as a married woman, would be bound neither by her express contracts, nor by those implied contracts which it is the policy of the law to create between attorney and client." The fact of her coverture was admitted. The matter was reheard in the Illinois court, and the application again denied. It was considered as settled, in Illinois, that a married woman was not bound by contracts having no relation to her own pi-operty.^ In all other respects than those already mentioned, the Illinois court considered it left to their discretion to establish rules by which admission to the office of attorney should be determined, provided that the court should establish such terms of admission as would promote the proper administration of justice, and that it should not admit any person, or class of persons, not intended by the legislature to be admitted, even though their exclusion was not expressly required by the statute. The opinion of the 1 In re Bradwell, 55 111. 535; Carpenter v. Mitchell, 50 111. i70; Conway v. Smith, 13 Wis. 125. § 40 NATURE OF THE OFFICE QUALIFICATIONS. 77 State court rested upon the latter ground — the intention of the legislature as a basis — and the general usage of courts from time immemorial was invoked in ascertaining the legislative intent. The application was denied, and the legislature referred to as the proper source of relief, by means of a change in the statute. It is to be observed that on the rehearing the opinion went be- yond the mere disqualification of coverture, and decided that under the existing statutes no woman, married or single, was privileged to practice law in that State. The State court having denied the application, Mrs. Bradwell carried the case to the Supreme Court of the United States. Mr. Justice Miller delivered the opinion of the court. He stated that the plaintiff asserted her right to a license on the grounds, among others, that she was a citizen of the United .States, and that having been a citizen of Vermont at one time, she was, in the State of Illinois, entitled to any rights granted to citizens of the latter State ; and also on the ground that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. The protection de- signed by the latter clause, it was thought, had no application to a citizen of the State whose laws are complained of. The court said : " We agree with counsel, that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these, and these alone, which a State is forbidden to abridge. But the right to admission to practice in the courts of a State is not one of them. This right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend on citizenship at all. Certainly many promi- nent and distinguished lawyers have been admitted to practice, both in the State and Federal courts, who were not citizens of the United States, or of any State. But, on whatever basis . this right may be placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts of a State, it would relate to citizenship of the State ; and as to Federal courts, it would relate to citizenship of the United States. * * " The right to control and regulate the granting of license to practice law in the courts of a State, is one of those powers which are not transferred for its protection to the Federal Gov- 78 NATURE OF THE OFFICE QUALIFICATIONS. § 40 ernment, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license." ^ The action of the lower court was, therefore, held not to violate any provision of the Federal Constitution, nor the Fourteenth Amendment to that Constitution, the power of a State to prescribe qualifications for admission to the bar of its own courts being unaffected thereby. The judgment of the lower court was affirmed. Justices Bradley, Swayne, and Field concurred in the judg- ment, but not in the reasoning of the opinion. "The claim," said Mr. Justice Bradley, "that under the Fourteenth Amendment, which declares that no State shall make or enforce any laws which shall abridge the privileges and im- munities of citizens of the United States, the statute law of Illi- nois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood, (the practice of law includ- ed) assumes that it is one of the privileges and immunities of women, as citizens, to engage in any and every profession, occu- pation, or employment in civil life. It certainly cannot be af- firmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of men and women. « * * J^ ^j^g nature of things, it is not every citizen, of every age, sex, and condition, that is qualified for every calling and position. It is the pre- rogative of the legislator to prescribe regulations, founded on nature, reason, and experience, for the due admission of qualified persons to professions and callings demanding special skill and confidence." ^ 1 Bradwell v. The State, 16 Wall. 130; Slaugliter-liouse Cases, 16 Wall. 36. -Chase, C. J., dissented from the judgment of the court, and all the opinions. Afterward, a statute was passed in Illinois which permitted women to be licensed to practice ; and by statute, or decisions of Qourts, they may be admit- ted in several of the other States. The Court of Claims has decided that, under the Constitution aud laws of the United States, a court of the United States is without power to admit a woman to the bar; and a woman is witliout legal capacity to take the office of attorney. A woman, therefore, cannot be permitted to practice in the Court of Claims. § 41 NATURE OF THE OEEICE QUALIFICATIONS. 79 § 41. Taxation of the profession. — As the State has a right to tax occupations, a revenue act requiring a lawyer to pay a revenue license, entitling him to practice his profession within the State, has been held constitutional, and this on the ground that the right to tax is an incident of sovereignty, and co-exten- sive with it. All subjects over which the sovereign power of a State extends are objects of taxation. And the private revenue of individuals arises ultimately from three different sources — rent, profit, and wages ; and every public tax must be finally paid from some one, or all, of these different sources of revenue. Neither is the tax open to the constitutional objection that it is not equal and uniform, if it is so upon all attorneys as a class. The State having authorized the issuance of a license to an at- torney, is not thereby precluded from taxing such party annu- ally for pursuing the profession within the State. ^ (In re Belva A. Lockvrood, 9 Nott & H. 34B. See In re Lavinia Goodell, 39 Wis. 232.) In North Carolina, an unnaturalized foreigner cannot be licensed as an attor- ney. (Ex parte Thompson, 3 Hawks, 355. ) 1 Jones V. Page, 44 Ala. 657; Stewart v. Potts, 49 Miss. 749; McGuUoch v. Mary- land, 4 Wheat. 316; Weston v. Council, 2 Peters, 449; Brown v. Maryland, 12 Wheat. 419; Smith's Wealth of Nations, B. 5, chap. 2, p. 2; State v. King, 21 La. An. 201; State v. Wafles, 12 La. An. 243; Mayor v. Yuille, 3 Ala. 137; Cousins v. State, 50 Ala. 113; State v. Gazlay, 5 Ohio, 14; Goldthwaite v. Council, 50 Ala. 486; Case v. Mayor, 30 Ala. 538. 80 ADMISSION TO PRACTICE. § 42 CHAPTER III. ADMISSION TO PRACTICE. § 42. Admission. § 43. Admission and permission to practice essential. § 44. Old regulations as to admission and practice in England. § 45. The articled clerks of England — Persons contracting. § 46. Service under the articles. § 47. Continuous service. § 48. Holding other offices. § 49. Service under partners. § 50. Affidavit necessary. § 51. Assignment and discharge of articles. § 52. Disputes between clerk and master. § 53. The application and admission to practice under the English system. § 54. Examination and admission of attorneys under the English system. § 55, The certificate. § 56. Registration of names. § 57. Practicing in the names of each other. § 58. Effect of want of qualification. § 59. Readmission. § 60. Statutory regulations in England. § 61. Solicitors under the Supreme Court of Judicature Acts. § 62. Colonial Attorneys Relief Act, 1874. § 63. Statutory regulations in Ireland. § 64. Statutory regulations in Scotland. § 65. Statutory regulations and rules in the United States. § 66. In the United States Supreme Court. § 67. In Alabama. § 68. In Arizona Territory. § 69. In Arkansas. § 70. In California. § 71 . In Dakota Territory. § 72. In Illinois. § 73. In Iowa. § 74. In Nevada. § 75. In New York. § 76. In Pennsylvania. § 42. Admission. — A consideration of the admission of the attorney to the bar introduces us to a subject governed, to a great extent, by statute and rules of court. The general rules and general features running through all the regulations will be considered, and afterwards some of the statutory and other § 43 ADMISSION TO PRACTICE. 81 rules obtaining in England and a few of the representative States and Territories of the American Union will be glanced at, and references made to other similar statutes in other States.^ The qualifications of the attorney and the nature of his office having been treated of, the next inquiry is as to how he may obtain admission to the bar, and thus become introduced to the privileges and responsibilities of his profession. § 43. Admission and permission to practice are essen- tial. — The office of attorney at law is public so far as concerns the necessity of a license of some kind for its exercise, and the duty imposed upon the attorney of subserving the interests of public justice in the mode pointed out by his oath for admission.^ Due admission to practice, according to the lexfori^ is essential to enable a person to practice either as attorney, solicitor, or counsel in a particular court.^ In the admission of attorneys the courts are said to act judicially. The function Is held not to be of an executive character, neither is it ministerial.* A citizen of one State is not entitled, as of right, to admis- sion to the bar of another State. The term " any male citizen," used in the statutes in regard to the admission of attorneys, has been construed to mean a citizen of the State.^ Nor can the legislature pass an act allowing such admission, and take the power of examination and passing upon the qualifications of an applicant away from the court, and confer it upon non-residents.'' The fact of an attorney not being admitted to practice is not a cause for dissolving an injunction, and dismissal of the bill. If plaintiff is present to attend, he need not have counsel. The 1 Thf provisions of tlie statutes of older States, being incorporated with addi- tions in those of newer States and Territories, the latter have sometimes been selected as illustrations instead of the former. ■-\A'aters c. Whittemore, 22 Barb. 505; Austin's Case, 5 liawle, 191; Byrne r. Stewart, 3 Dessaus. Kq. 4(;(); Wharton 6n Agency, sec, 557. 3Ex parte Collins, 2 ^'a. Cas. 222; Wharton on Agency, sec. 557; Hobby c. Smith, 1 Cowen, 588; Seymour r. Ellison, 2 Cowen, 13; Robb c. Smith. 4 111. 46; Hallowell's C^ase, 3Dall. 410; State o. Garesche, 36 Mo. 256: Champion r. State, 3 Cold. Ill; McKoan v. Uevries, 3 Barb. 196; Ex parte Hunter, 2 W. Va. 122; Thorn w. Lawson, 6 Tex. 240; Eader c. Snyder, 3 W. Va. 414. See Ex parte Ten- ney, 2 Duval, 351; Harrington v. Edwards, 17 M'is. 586. ■iln re Brackenridge, 1 Serg. & R. 187. 5 In re Henry & Snyder, 40 N. A'. 560. 6 In re Mosness, 39 Wis. 509. A. & C— 6. 82 ADMISSION TO PRACTICE. § 44 attorney himself, however, may be punished.^ A client is not bound to ascertain whether a party, ostensibly acting as attor- ney, whom he employs in that capacity, is duly qualified. And proceedings taken by practitioners whose qualifications are de- fective are held to be neither void nor perhaps irregular on that account, so far as the proceedings are concerned.^ § 44. Old regulations as to admission and practice in England. — Most of the old English statutory enactmeiits as to attorneys were repealed or superseded by the 2 Geo. 11, chap. 23, and this in turn has been remodeled, and many of its pro- visions merged in subsequent enactments. Some of the old pro- visions have been incorporated in these subsequent enactments, and others have become obsolete. It may be interesting, how- ever, if not instructive, to refer to a few of these ancient regu- lations. By the 15 Edw. II, stat. 1, the barons of the exchequer were restrained from admitting attorneys, except in pleas before them, and prohibited their clerks and servants from admitting attor- neys, reserving to the chancellor and chief justices power to admit attorneys according to their discretion. The Statute 4 Hen. IV, chap 18,^ enacted that attornevs should be examined by the justices, and, by their discretion, their names put in the roll ; " and they that be good and virtu- ous, and of good fame, shall be received and sworn well and truly to serve in their offices, and esiDecially that they make no suit in a foreign country ; and the other attorneys shall be put out by the discretion of the said justices, and that their masters for whom they were attorneys be warned to take others into their places, so that, in the meantime, no damage nor prejudice come to their said masters. And if any one of the said attor- neys do die, or do cease, the justices shall make another in his place, which is a virtuous man and learned, and sworn in the same manner as afore is said ; and if any such attorney be 1 Peterson v. Parriott, 4 ^\■. Va. 42; Rader v. Snyder, 3 NV. Vn. 413. ■' Hilleary o. Hungate, 3 Dowl. 62; Smith v. Wilson, 1 Dowl. 545; Anon c. Sexton, Ibid. 180; Glynn v. Hutchinson, 3 Dowl. 529; Harding v. Purkess, 2 Marsh. 228; Welch v. Pribble, 1 Dowl. & R 215; Reader r. Bloom, 3 Bing. 9; 10 Moore, 261. 8 2 Reeve's Hist. Eng. Law, chap. 18. § 44 ADMISSION TO rEACTICE. 83 found in any default of record or otherwise, he shall forswear the court, and never after be received to make any suit in the court of the king." This was also to be observed in the ex- chequer at the discretion of the treasurer and barons. The 3 Jac. I, chap. 7, enacted that attorneys or solicitors de- laying their clients' suits for gain, or making false charges, "■ shall be liable to costs and treble damages in an action, and be discharged from being an attorney or solicitor any more ; and to avoid the infinite numbers of solicitors and attorneys, none shall be admitted but such as have been brought up in the said courts, or otherwise well practiced in soliciting of causes, and have been found by their dealings to be skillful and of honest disposition, and that none be suffered to solicit causes in any of. the coui'ts aforesaid, but only such as are known to be men of sufficient and honest disposition." The 88 Hen. VI, chap. 7, recited the great increase of attor- neys in Norfolk and Suffolk ; enacted that there should be but six attorneys in Norfolk, six in Suffolk, and two in Norwich, to be admitted by the two chief justices. Offenders were to for- feit ^20. By rule of Mich. 1654, (K. B. and C. P.) it was ordered that a jury of able and credible officers, clerks, and at- torneys should, once in three years, inquire concerning the offenses of attorneys ; and that the court, once in every year, at Michaelmas, should nominate "twelve, or more, able practicers "' to examine such as should desire to be admitted attorneys, and to inform the court of breaches of orders. Under the rules of the Court of King's Bench, in 1654, none was to be admitted an attorney unless he had practiced five years, or served five years as clerk to some judge, serjeant at law, counsellor, attorney, or officer of one of the courts at West- minster, unless his master died or gave over practice ; and also unless, upon examination, he was found of good ability and honesty for such employment ; and that sufficient proof (to be put into writing) was made of such service to the prothonotary upon a desire of admittance, and filed with the clerk of the warrants, without fee. Attorneys dismissed by one court from their practice, for misdemeanors, were not (after certificate) to be admitted to practice in another court, it being contrary to the intent of the law. 84 ADMISSION TO PRACTICE. § 45 Various rules were promulgated in the courts of King's Bench and Common Pleas, in the years 1457, 1564, 1573, 1582, 1616, 1615, 1645, 1654, 1656, 1632, 1682, 1662, 1669, 1705, regulating the attendance upon the court, practicing without leave, pay- ment of fees, the number of attorneys allowed to practice, the appearance and change of attorneys, the retainer and licenses of attorneys, etc. Formerly an attorney of the Court of King's Bench could not practice in the Court of Common Pleas, nor vice varMi. No one could jjractice as an attorney in any of the court.s but such as were admitted and sworn as an attorney of that particular court. But afterward, by the Statute 6 and 7 Vict., chap, 73, sec. 27, attorneys admitted of any one of the superior courts might practice in any other superior court, or in any inferior court of law in England and Wales, upon signing the roll of such other court. To practice in the Court of Chancery, it was still necessary to be admitted a solicitor therein. The Statute 6 and 7 Vict., chap. 73, consolidating' and amend- ing several of the laws relating to attorneys and solicitors, pre- scribes the conditions of admission as an attorney, the time and mode of their service under articles, and the oaths to be admin- istered to them ; anfl authorizes the judges of the courts of com- mon law, and the master of the rolls, to appoint examiners, to examine the fitness and capacity of all persons applying to be admitted as attorneys or solicitors ; and the certificate, either of the common law or equity examiners, will be sufficient to entitle a person so examined to admission in all the courts, examination by both not being necessary. § 45. Articled clerks in England — Persons contracting. — In P^ngland, the first step requisite to a person becoming an attorney has been to enter into an agreement, usually culled arti- cles of clerkship, with a person properly qualified under the statutes to take articled clerks for the purpose of becoming attorneys or solicitors. The attorneys or solicitor^ pi'operlv qualified to receive clerks must be actually practicing, or else the masters must be certain other specified officers of the various § 45 ADMISSION TO PRACTICE. 85 courts.^ The binding of the clerk to his master must be hona ■fide, and he must be under the entire control of the master the whole of the time mentioned in the articles.^ The person arti- cled must be of a proper age, or his name will be erased from the roll of clerks in court.^ By the Statute 6 and 7 Vict. chap. 73, sec. 3, no person is capable of being admitted and enrolled as an attorney or solicitor, unless he has been bound by contract in writing to serve as a clerk for and during the term of five years to a practicing attor- ney or solicitor in England or Wales, duly sworn and admitted, and has duly served under such contract for the term of five years. A person bound for five years may serve part of that time, not exceeding a year, as pupil, either with a practicing barrister or a certificated special pleader, or the London agent of the attorney or solicitor.* No attorney or solicitor can have more than two clerks at the same time, or take or retain a clerk after discontinuing practice, nor while he is retained as a writer or clerk by any other attor- ney or solicitor ; and service under such circumstances is not included in the computation of time, nor considered as good ser- vice." By the 23 and 24 Vict., chaj). 127, sec. 4, 23er;ions hav- ing been hona fide clerks to attorneys and solicitors for ten years, may be admitted after three years' service.^ Under the old English rule, service under articles to an attor- ney by a barrister was not available for the purpose of his being admitted an attorney ; ^ but by 23 and 24 Vict., chap. 127, sec. 3, persons, having been barristers, may be admitted as attorneys after three years' service to attorneys or solicitors in practice. Persons who hold government positions are not competent to iSee the early statute: 22 Geo. 11, cliap. 46, sees. 7, 19; 2 Geo. II, chap. 23, sec. 15; Keg. Trin. 31 George III, K. B. & C. P. 2 Ex parte Taylor, 4 Bam. & C. 341; Eraser's Case, 1 Burr. 291. 3 In re Donne, 3 Swanst. 96. * 6 and 7 Vict, chap, 73, sees. '■>, 6. The 1 and 2 Geo. IV, chap. 48, and 1 Vict, chap. 56, repealed, were of similar purport; 6 and 7 Vict. chap. 73, see. 4; 3 Stewt. Blackst. 29. See also 2 Geo. II, chap. 23, sees. 5, 7; 12 Ibid. chap. 13, sec. 3; 22 Ibid. chap. 46, sec. 2; 30 Ibid. chap. 19, sec. 75. 5 E. Trin. 31 Geo. Ill, K. B. and C. P. This rule has been held retrospective in its operation, it being merely confirmatory of an old regulation. (4 Durn. & B. 492.) 6 See In re Sherry, 3 Law E. Q. B. 164. 7 In re Bateman, 2 Dowl. & L. 725; 6 Q. B. 583; 9 Jur. 132; 14 Law J. Q. B. 89. 86 ADMISSION TO PRACTICE. § 46 enter into a contract of service as articled clerks. Where a person so situated was articled to an attorney, and nominally served him for five years, retaining his position under the gov- ernment during the entire period, and then commenced practic ing as. an attorney, the court ordered his name to be stricken from the rolls. ^ It foUovs^s that the service must be honafide ; and accordingly, where an attorney, by mere collusion, and with intent to secure the business arising from the prisoners, took one of the turnkeys of the King's Bench Prison for his articled clerk, the articles were canceled in court.^ To be admitted, a clerk must actually serve the full time under the articles ; any interregnum must be supplied by service under new arti- cles.8 The clerk must also be under the complete control of his master for the full term. Any other absorbing occupation, like accepting a busy official position, may prevent his admis- sion, or, being admitted, lead to the striking of his • name from the rolls.* This rule has been laid down with much strictness and apparent hardship ; the devoting of days, or even hours, to a government employment, although only an hour or so per day, being held to disqualify the clerk. § 46. Service under the articles. — The articled clerk must, during the whole time and term of service specified in the contract, continue and be actually employed in the proper business, practice, and employment of an attorney or solicitor. An affidavit of due service is required of him before admission.^ But no person who has regularly served his clerkship is pre- vented or disqualified from being admitted, by reason of his master having omitted or neglected to take out his annual cer- tificate, or to enter or register it.^ The time of service is computed from the date of the execu- tion of the articles, and not from their date ; and the clerk can- 1 In re Taylor, (i Dowl, & R. 428; 4 Barn. & C. 341. The same prohibition is now incorporated in the Statute 23 and 24 Vict. chap. 127, sec. 10. 2 Eraser's Case, 1 B*rr. 291. 3 Ex parte Smith, 1 Dowl. & R. 14. * Ex parte Rowle, 2 Chit. 61; Ex parte Taylor, 5 Barn. & Aid. 341; 4 Barn. & C. 341; 6 Dowl. & R. 348. See Ex parte Paige, 1 Bing. 160; 7 Moore, 572. 6 6 and 7 Vict. chap. 73, sees. 12, 14; 2 Geo. II, cliap. 23, see. 5; 22 Ibid. chap. 46, sec. 8. 6 Ibid. § 46 ADMISSION TO PEACTICE. 87 not be admitted till he has served five years from the former date." A clerk (being a master of arts) was articled on the 8th of May, 1858, for three years " from the date thereof." It was held that such service was not completed until after the 8th of May, 1861.2 In deciding whether the service of an articled clerk has been sufficiently subject to the supervision of the master, the courts are governed by the circumstances of each particular case.^ The statute does not seem to be complied with by the clerk serving part of the time with another attorney, even with his master's consent, and the residue of the time with his master ; * nor with the partner of a" deceased master.^ But an articled clerk, performing all his master's business, may at leisure hours work for wages with another attorney.^ If the clerk be absent, with his niaster's consent, a portion of the allotted time, he must serve for that length of time in addition, and can then be admit- ted. "^ But in one case, where the time of absence was spent in a law school in the United States, and the voyage thither was taken by medical advice, and with the consent of the master, the clerk was allowed to be examined for admission, and the time of absence included.^ 1 Ex parte Angel, 4 Jur. 656. 2 Anon. 9 W. K. 639. 3 In re Duncan, 5 Best & Smith, .341; 10 .Jnr. N. S. 939; 33 L. J. Q. B. 190; 12 Week. E. 752: 10 L. J. N. S. 337. ■•In re Taylor, 4 Barn. & 0. .341; 6 Dowl. & K. 428; Ex parte Hill, 7 T. g. 456. 6Ex parte Dalton, 9 D. P. C. 110; 4 Jur. 1187. ^ Ex parte Blunt, 2 W. Black. 764; Ex parte Hill, supra; Llewellyn, Ex parte, 2 Dowl. K. S. 701; 7 Jur. 377 ; 12 Law J. Q. B, 138. See Ex parte Carr, 3 Q. B. 447. ■?Ex parte Hubbard, 1 D. P. C. 438; S. P. Ex parte Frost, 3 D. P. G. 322; 1 Har. & W. 111. 8 Ex parte Cross, 2 Dowl. N. S. 692; 7 Jur. 67; 12 Law J. Q. B. 138. See Ex parte Earle, 17 Jur. 440; 1 B. C. C. 180. See, as to effect of assignment of articles, Ex parte Brutton, 18 Jur. 580; 23 Law J. Q. B. 290. See generally, as to effect of assignment, absence, and time of service, Ex parte Wallis, 8 Jur. M". S. 913; 2 Best &. Smith, 416; 31 Law J. Q. B. 176; 6 L. T. N. S. 242; In re Hayward, 11 Week. E. 67; Ex parte Smith, 5 Jur. N. S. 515; 28 Law J, Q. B. 263; 7 Week. E. 451; 32 L. T. 135; 1 El. & E. 928; Ex parte Keddle, 4 Best & Smith, 993; 11 Jur. N. S. 503; 34 Law J. Q. B. 136; 13 Week. E. 290; 11 L. T. S, S. 625; In re Thomas, 11 Week. E. 341. As to effect of illness, see Anon. 9 L. T. N. S. 324; Ex parte Beddock, 13 Week. E. 871; 12 L. T. N. S. 711; Ex parte Matthews, 1 Barn. & Adol. 160; Ex parte De Eivas, 4 B. & S. 992; 11 Jur. N. S. 13; 34 Law. J. Q. B. 7; Ex parte Eogers, 11 Jur. N. S. 504; 34 Law. J. Q. B. 13B; Ex parte Vaughan, W. W. & D. 46; 1 Jur. 21. 88 ADMISSION TO PKACTICE. § 47 In case of death of the master, or his discontinuance of prac- tice, or if the contract is canceled by mutual consent, or the clerk legally discharged by order of court, and he shall become bound by another contract, the time during which he served bona fide under the first articles shall be good and available pro tanto in estimating the requisite time under the second contract.^ By the 23 and 24 Vict., chap. 127, sec. 2, (repealing sec. 7 of the 6 and 7 Vict., chap. 73) a person having taken the de- gree of bachelor of arts or of laws, at the Oxford, Cambridge, Dublin, Durham, or London universities, or in the Queen's Uni- versity, in Ireland; or the degree of bachelor of arts, master of arts, bachelor or doctor of laws in any of the universities in Scotland, not being honorary, may be admitted after three years" service, instead of five. Under former statutes it was held that he must have taken his degree before being bound by arti- cles.^ By the same 23 and 24 Vict., persons who have success- fully passed examinations at the universities may be admitted and enrolled, after having duly served under articles for the term of four years, under regulations made by the judges.'^ § 47. Continuous service. — A clerk was articled to his father, who was an attorney, for five years, and he served part of the time, when the father assigned all the service he had in the clerk to another attorney for fifteen months ; and the clerk served for that time, and then returned to his father, and served under the original articles for the remainder of the five vears. The court held that the service under the second attorney could not be reckoned as part of the five years' service required by the 1 6 and 7 Vict. chap. 73, sec. 13. See 2 (ieo. II, chap. 123, sec. Vl: 22 Geo. II, chap. 46, sec. 9; ch&\>. 14, sec. 17. 2Bx parte Bradford, 1 El. & E 417: 5 Jur. N. S. lilS; 28 Law ,7. Q. B. i:iS: 7 Week. E. 188; ,32 L. T. 254. See Ex parte XJnthank, 2 Moore & P. 453; Ex parte Gardner, 8 L. T. N. S. 315. See old statutes, 1 and 2 C;eo. IV, chap. 48; 3 Geo. IV, chap. 16; 7 Geo. IV, chap. 5. 8 See as to rules and regulations for the examination of articled clerks, under the 23 and 24 Vict. chap. 127; Keg. tlen. July 26r.h, 1861; 7 Jur. N. S. 309, 310, part 2; Reg Gen. Nof. 26th, 1861; 8 Jur. N. S. 5, part 2. See as to service of managing clerks: 23 and 24 Met. chap. 127, sec. 4; Ex parte Vosper, 4 Best \- Smith, 901; 10 Jur. N. S. 724; 33 Law J. ^i. B. 113; 12 Week. R, 374; Ex parte Rigby, 11 L. T.N. S. 671. §§ 48-9 ADMISSION TO PRACTICE. 89 6 and 7 Vict., chap. 73, sees. 6, 12, as a service with another, even with the master's consent, is not sufficient. ^ So a service has been held insufficient, if continuous for the whole time, but under two distinct contracts of service.^ A clerk was articled for five years, and served part of the time, when, owing to illness, and tinder medical advice, he went on a sea voyage, was gone eleven months, and then returned and resumed his service for the remainder of the five years. He then applied for admission, but the court refused it, holding that the eleven months of absence could not be counted as service, as he had not been actually employed as an attorney during five years, under the 6th and 7th Vict., chap. 73, sec. 12.^ § 48. Holding another office. — Employment as steward of a manor has been held not a violation of the statute,* the duties having been performed by a deputy, with whom the clerk divided the fees, and tlie clerk having thrice only during two or three j^ears, and with his principal's consent, absented him- self for a day in order to hold court.^ But where an articled clerk held during the term of his ar- ticles the office of vestry clerk, and it was shown that the duties of the office had not interfered Avitli the due performance of his duties under his articles, or with his legal studies, still he was said to have contravened the provisions of the 23 and 24 Vict., chap. 127, sec. 10, by holding another office, and his a23f)lication for admission was denied." § 49. Service under partners. — The practice had been to bind the clerk to one partner only of a firm. An attorney can have but two clerks articled to him during the same period ; and, therefore, if he has a partner, and a clerk 1 Ex parte Adams, 10 l»a\v R. Q. B. 227: approving Ex parte Hill, 7 T. R. 456; under tlie old statute, 2 Geo. 12, chap 23; and distinguishing the case from Ex parte Brutton, 2:i L. .1. Q. B. 290, and Ex parte Trenchard, 9 Law R. Q. B. 400. 2 Ex parte Austin, 21 AVeek. E. 390; Ex parte Adams, 10 Law E. Q. B. 227. 3 Ex parte Moses, 9 Law R. Q. B. 1. See as to service under old articles, cancel- lation by mutual consent, Ex parte Trenchard, 9 Law R. Q. B. 401). ^ 23 and 24 Vict. chap. 127, sec. 10; 6 and 7 A'ict. chap. 73. ' In re Peppercorn, 1 Law E. Com. P. 473. See In re Taylor, 4 Barn. & C. 341. ^ In re Greville, 9 Law E. Com. P. 13; distinguishing the case from In re Pep- percorn, supra, the doctrine of which the court said would not be extended. 90 ADMISSION TO PRACTICE. §§ 60-1 is articled to both members of the firm, the number of articled clerks which the firm may take would necessarily be diminished. Hence, the practice of binding the clerk to one master only. But the case of Ex parte Bayley ^ certainly seems to counte- nance a binding to two attorneys. Nevertheless, there are in- conveniences which might result to them if the clerk were ar- ticled to the firm, and also possible inconvenience to the clerk, if the partnership* were dissolved, for he could not serve two masters. But if the applicant chooses to be bound to both part- ners, he may take the risk ; a binding to both is a binding to each, and is not contrary to the act ; and if the parties choose to adopt that form of engagement, knowing the consequences that may result, they are at liberty to do so.^ § 50. Affidavit necessary. — The attorney to whom the clerk is bound must, within six months after the date of the con- tract, make or cause to be made, and sworn to, an affidavit of the attorney's having been duly admitted, and of the actual execu- tion of the contract by the attorney and clerk. This affidavit must be filed within six months next after the execution of the contract.^ § 51. Assignment and discharge. — By 6 and 7 Vict., chap. 73, sec. 5, if an attorney or solicitor, before the end or determi- nation of the contract, becomes bankrupt, or is imprisoned for debt, and remains in prison for the space of twenty-one days, the court wherein he is admitted, upon the application of the clerk, may order and direct the contract to be discharged, or assigned to such person, upon such terms and in such manner as the court may think fit. And so upon the death of the attorney, or if he discontinues practice, or if the contract is canceled by mutual consent, or the clerk is legally discharged before the expiration of the term by any rule or order of the court, the clerk may be bound by another contract to any other practicing attorney or solicitor during the residue of the term, and service Under this contract wall be deemed good and effectual service, provided 1 9 Barn. & C. G91. 2 In re Holland, 7 Law R. Q. B. 297. 8 6 and 7 Vict, cliap. 7:i, sec. 8. § 52 ADMISSION TO PRACTICE. 91 an affidavit is made and filed of the contract and its execution, as in the case of a first or an original contract.^ If the master absconds, or is guilty of a felony, the clerk may obtain a discharge from his articles, and further articles may be enrolled without an assignment of the original articles. The service of the rule in some way is sometimes ordered, but in cases of felony the court will generally grant a rule absolute in the first instance to discharge the clerk from his articles.^ Similar orders will be made in cases where the attorney be- comes insane, or dies intestate ; and in a case where an articled clerk, under age, obtained a position abroad, and his father, as well as the attorney, joined with him in an application to vacate the articles, the court granted the motion.^ In case of the dissolution, for any reason, of the relation be- tween the articled clerk and his master, it seems to be at the dis- cretion of the court whether or not an order will be made for the return of any part of the premium paid to the attorney for taking the articled clerk. The course pursued has varied with the circumstances of each particular case.* § 52. Disputes between the clerk and the master. — The courts in England appear to have exercised a very summary 1 6 and 7 Vict. chap. 73, sees, 5, 13. 2Ex parte Cartley, 12 Law J. Q. B 98; Ex parte Hancock, 2 Dowl. N. S. 54; 6 Jur. 949; Ex parte Cartmel, 6 .Jur. 950. See Ex parte Carnley, 2 Dowl. jST. S. 945; TJur. 767. 8 Anon. 3 Jur. 652; Ex parte Lewis, 2 Dowl. & L 130; 8 Jur, 539; 13 L. J. Q. B. 261 ; Ex parte Allen, 8 Jur. 1169 ; Bx parte Darbell, 6 D. P. 0. 505 ; 1 W. W. & H. 174. See as to making and filing affidavit of due execution of the articles, and the enrollment and registration thereof : 6 and 7 Vict. chap. 73, sees. 8, 9, 13; Ibid, chap 86, sees. 1, 2,3; 23 and 24 Vict, chap 127, sec. 7; Ex parte Hemlug, 9 Jur. 900; In re Harris, 11 Week. R. 36; In re PoUett, 30 Beav. 629; Ex parte Legett, 3 Jur. N. S. 1219; Ex parte Lee, 8 Week. R. 541; Anon. 27 Law J. Q. B. 184; Ex parte Cunningham, 9 Jur. 109; 8 Jur. 405; In re Benson, 10 Beav. 435; De Paur v. Sigel, 4 DeGex, M. & G. 20. When articles are lost or stolen, see 2 and 3 Vict. chap. 33, sec. 9; Ex parte Chapman, 3 D. P. C. 562; Ex parte Beckenden, 1 Har. & W. 193: Ex parte Clark, 3 Barn. & Aid. 610; Ex parte Nash, 6 Scott N, R. 695; Ex parte Briggs, 1 Dowl. & L. 94. 4 Ex parte Gardner, 2 D. P. C. 520. See Bx parte Prankerd, 3 B. & A, 257; Ex parte Bayley, 9 Barn. & C. 691 ; Bx parte Haden, 1 W. W. & H. 321 ; 2 Jur. 873 ; Ex parte Bennett, W. W. & D. 210; Ex parte Thompson, 1 Ex. 864; Hirst u. Tolson, 2 Macn. & G. 134; 2 Hall & T. 359; 14 Jur. 559; 19 L. J. Gh. 441; Lee v. Page, 7 Jur. N. S. 768; 30 L. T. Ch. 857; 9 Week. R. 754; Craven u. Stubbins, 10 Jur. N. S. 1189; 34 L. J. Oh. 126; 13 Week. R. 208; 11 L. T. 402. 92 ADMISSION TO PRACTICE. § 53 jurisdiction over disputes and matters of difference arising be- tween the clerk and his master, especially in all cases of mis- conduct on the part of the clerk. Thus, a court refused to com- pel an attorney to execute an assignment of articles of clerkship where the clerk had been guilty of criminal conversation with the attorney's wife.^ If the master refuses to deliver up the articles after the clerk has served his full term, the court will compel their delivery.^ § 53. The application and admission to practice under old English rules. — Under a rule of the Court of King's Bench, in the time of George III, evei*y applicant for admission as an attorney in that court, and who had not been admitted to any other court, was required, for the space of one full term previous to the term in which he intended to apply for admis- sion, to cause his name and place of abode, and also the names and residences of the attorneys to whom he was articled, to be fixed on the outside of the Court of King's Bench, in the place apj)ropriated for public notices, and also in some conspicuous place in the cliambert< of each of the judges of the court, and in the King's Bench office. No person failing to comply with this order was allowed to be admitted. Similar notices were required iii the Court of Common Pleas ; but the Court of King's Bench, by a subsequent rule, ordered that, instead of posting the names and residences in each of the judge's cham- bers, they should be entered in a book kept for that purpose at each of the judge's chambers of that court. ^ In the Common Pleas, the application was to be made before the last week in the term, and every person not being an attor- ney of the Court of King's Bench, or solicitor in the Court of Chancery or Court of Exchequer, was required, before being sworn, to file articles of clerkship, together with the affidavit of the due execution thereof, and the affidavit of due service under the articles, and of the notices having been given pursuant to rule. The notice was required to be given for the term immediately 1 Ex parte Briggs, 1 Tidd's Pr. C8; Ex parte Frankerd, 3 Barn. &• Aid. 257; 1 Chit. (i94, 558; 2 Chit. .52; Copes v. Hutton, 2 Kuss. 357. 2 2 Ru3S. 358. 3 Heg. T. T. 31 Geo. Ill; Ibid. 31 and :« Geo. Ill, K. B. ^: C. P. § 64 ADMISSION TO PRACTICE. 93 preceding the term in which application was made for admis- sion. Where an attorney's clerk has served part of his time with one attorney and part with another, to whom the articles are assigned, the name of the assignee must be inserted in the notice of intention to apply for admission.^ As to examination for admission, the judges of the respective courts, or one or more of them, were, by the 34 Geo. Ill, chap. 14, sec. 3, required, before allowing any person to take the oath or affirmation, to examine and inquire, by such ways and means as might appear suitable, into the fitness, capacity, and qualifi- cations of the applicant, and, after being satisfied of these things, administer the oath in open court, and then cause him to be admitted, and his name to be enrolled. § 54. Examination and admission of attorneys under the English system. — The candidate for admission in England is now required to give notice to the examiners before the com- mencement of the term next preceding that in which he pro- poses to be examined, of his intention to apply for examination. Three days, at least, before the commencement of the term next preceding that in which any j^ei'son shall propose to be admitted an attorney of any of the courts, he must cause to be delivered at the master's ofiice a written notice, which must state his place or places of abode or service for the last jjreceding twelve months, and the name and place of abode of the attorney or attorneys to whom he was articled and assigned (if any assign- ment was made) ; and the master is required to post the notice on the first day of the term in some conspicuous place, within or near to and on the outside of each court ; and the applicant is also required, for the space of one full term previous to the term in which he shall apply to Ijc admitted, to enter, or cause to be entered, in two books kept for that purpose, one at the cham- bers of the lord chief justice or chief baron of the court in which he applies to be admitted, and the other at the chambers of the other judges or barons of such court, his own name and iR. M. 2 Geo. II, C. P.; R. T. 37 Geo. Ill, C. P. ; 1 lios. .■<.•, P. 90; Ex parte Bonner, 2 Marsh. 4.S; U Taunt. 335; Ex parte Stokes, 1 Cliit. .5.")fi. 94 ADMISSION TO PRACTICE. § 54 place of abode, and those of the attorney to whom he has been articled and assigned, if any assignment has been made.-* Three days' notice must be given to the master, exclusive of the day on which the notice is given, and of the first day of the term to which it relates. Sunday will be counted as one day.^ Slight discrepancies in names of the parties and residences will not invalidate the notices, especially upon proof of identity.^ Slight irregularities, susceptible of amendment, are not fatal.* The courts have exercised their discretion according to the circumstances of each particular case, in dispensing with the regular notices, and in accepting irregular ones.^ A printed copy of the list of admissions and re-admissions is required to be posted in the Queen's Bench, Common Pleas, and exchequer offices, and at the judges' hall or chambers of each court in Roll's Gardens. The several masters for the time being for the courts of Queen's Bench, Exchequer, and Common Pleas, together with sixteen attorneys or solicitors, to be appointed by a rule of court, in every year, to be examiners for one year — any five of whom may act, there being at least one master among the five — are to conduct the examination, and be subject to appeal. No person who shall not have been previously admitted a solicitor of the High Court of Chancery shall be admitted to be sworn an attorney of any of the courts, except on production of a certificate signed by the major part of such examiners actually present at and conducting the examination, testifying to the fitness and capacity 1 Reg. Gen. Hil. T, 16 Vict. 1853; 6 and 7 Vict. chap. 73, sees. 15, 16; 1 El. & B. App. 57. See In re Lucas, 2 Jur. N". S. 65, Q. B. As to admission of barristers through the inns of court, see Introduction, anle, sec. 15, et seq. 2 In re Prangley, i Ad. & B. 781; 6 Nev. & M. 421; 2 Har. & W. 65; Ex parte Bumps, 5 D. P. C. 713; W. W. & D. 530. But see Ex parte Blunt, 5 D. P. C. 231; Ex parte Bayley, 6 D. P. C. 516; 1 W. W. & H. 175; 2 Jur. 326. 3 Ex parte Croft, 5 Nev. & M. 58; 1 Har. 6c W. 375; Ex parte Dukes, 7 D. P. C. 605; 2 W. W. cSr H. il; In re Clarlfe, i Nev. & M. 709; 3 Ad. S: E. 72; 1 Har. 6t W. 141; Ex parte Collins, 6 D. P. C. 495; 1 W. AV. & H. 173; 2 Jur. 842; Ex parte Jones, 3 Ad. & B. 74; In re Saffery, 11 Weelt. R, 779. leases cited supra; Ex parte Rowland, 3 Jur, 1193; Ex Parte Lambert, 3 Moore & P. 269. See In re Tucker, 9 D. P. C. 661; Ex parte Voolwright, 4 D. P. C. 274; IHar. & W. 517. 6 See Ex parte Thompson, 1 W, "SV. & H. 33; 2 Jur, 34; Ex parte Gwynne, 2 W. W. & H, 95; 3 Jur. 199; Ex parte Hancock, 4 Ad. & B. 779; 2 Har. & W. 99; Ex parte Cunliffe, 3 Dowl, & L. 548; 9 Jur, 942; 15 Law J. Q. B, 41; Ex parte Est- coiirt, 8 Jur. 985; Ex parte Gutaris, 7 Jur, 1039. § 54 ADMISSION TO PRACTICE. 95 of the applicant to act as an attorney, and in the usual business transacted by an attorney ; and such certificate to be in force only to the end of the term next but one following the date thereof, unless such time shall be specially extended by the order of a judge. ^ The examiners conduct the examinations under regulations first submitted to and approved by the judges. The court has not power to extend the time during which the certificate of examination for admission to practice as an attor- ney shall be in force. The extension must be by order of a judge.^ If the applicant fail to receive his certificate, he must give a fresh term's notice to the examiners if he intends to apply again to be examined.^ If any person is dissatisfied with the refusal of the examiners to grant a certificate, he is at liberty within one month to apply for admission by petition, in writing, to the judges, to be delivered to the clerk of the lord chief jus- tice of the Court of Queen's Bench, upon which no fees or gratuity shall be received, and the application is to be heard by not less than three of the judges.* A clerk under twenty-one cannot be examined.^ But where he has served the full period of five years, and will become of age a few days after the term, he may be examined for the pur- pose of being admitted the following term.'' The court has, where a clerk jiroposed to practice abroad only, allowed him to be examined before the expiration of his articles.'^ 1 Eeg. Gen. Q. B. C. P. & Ex. H. T, ; 16 Vict. r. 1, 2; 1 El. & B. App. 58. •-Ex parte Young, 13 Q. B. 663; Ex parte Bromley, 2 Dowl. N. S. 388; 12 Law J. Q. B. 98; 6 Jur. 995. 3Ex parte Henry, 1 Perry & D. 71; 8 Ad. & E. 745; 2 Jur. 920; 1 W. ^Y. & H. 585. iReg. 3, 1 El. ^: B. app. 59. See, as to depositing articles, and assignment, if any; Eeg. Gen. supra, 1 El. & B. 58; Ex parte Buckle, 2 Dowl. N. S. i76; 7 Jur. 558; Ex parte Nichols, 2 Dowl. N. S. 423; Ex parte Cooper, 5 D. P. C. 703; W. AV. & D. 348. As to sending answers to questions, see Beg. Gen Q. B. C. P. & Ex. H. T. 16 Vict. r. 3; 1 El. & B. app. 61; Ex parte Lyons, 6 D. P. C. 517; 1 "\V. AV. & H. 174; Ex parte Holland, 5 D. P. 0. 681; AV. AV. & D. 349; 1 Jur. 4.32; Ex parte Carr, 1 Dowl. N. S. 565; 6 Jur. 194. 5 Ex parte Cragg, 6 D. P. C. 256; Ex parte Evans, 1 AV. AV. & H. 34; 2 Jur. 47. 6 Ex parte Tebbs, 9 D. P. C. 151 ; 1 AV. P. C. 16; 4 Jur. 1014; Bonsfleld, Ex parte, 9D. P. C. 616; 5 Jur. 772. 'Ex parte Twynam, 8 D. P. C. 293; Ex parte Fulcher, 8 D. P. C. 614; 4 Jur. 435; 3 Jur. 1124. See generally, as to examination. Ex parte Masterman, 6 Scott, 782; 7 D. P. C. 156; 5 Bing. N. C. 70; In re Smithers, 1 Arn. 423; In re Belib, 3 Jur. 24; Ex parte Johnson, 1 W. AV. & H. 404; 2 Jur. 966; Ex parte Tompkins, 6 96 ADMISSION TO PRACTICE. § 54 An attorney may be admitted on taking the oath of allegiance, and the oath to demean himself truly and honestly, under 6 and 7 Vict., chap. 73, sees. 18, 19.^ But he cannot practice in En- gland without taking the oath substituted for the oaths of alle- giance, supremacy, and abjuration, by 21 and 22 Vict., chap. 48, sec. 1. Attorneys of the superior courts are entitled to be ad- mitted to inferior courts of law.^ If the attorney, after admis- sion, change his name, the court may allow the entry upon the rolls to be altered accordingly.-^ If an attorney practice in a court in which he has not been admitted, he cannot maintain an action for his fees, nor for money out of pocket ; nor has he any lien for his costs or for money disbursed upon a judgment re- covered ; nor can he jjrevent the damages and costs in one action being set off against those in another, even though his costs have not been paid.* An indictment will lie against a person who acts as an attor- ney without being admitted and enrolled pursuant to 6 and 7 Vict., chap. 73, sec. 2, notwithstanding, by sec. 35, certain dis- abilities and penalties are imposed on a person so acting.'^ D. p. C. 3; W. W. ^K; D. 5U!I; Ex parte Thomas, 8 "SVeek. R. .522. See, as to expi- ration of period of clerkship, 23 and 24 Vict, cliap. 127, sec. 12; In re Ellis, 5 L. T. N. S. 686; In re Steele, 10 Jur. X. S. 12.51; 33 Law J. Q. B. 326; 12 Week. Pv. U.56. See, as to examination, articles of clerkship, notices of examination, etc.. Ex parte Clerk, 7 Law E. Q. B. 587; B.-c parte Stewart, 7 Law R. E.x. 202: Ex Parte Banyard, 10 Law R. ("om. P. 6.''.8; Ex parte Saver, 10 Ibid. 569; Ex parte Darville, 2 Ibid. 244; Ex parte Cumberland, 10 Law R. Q. B. 1.18. As to taking out certificate : Sparling r. Brereton, 2 Law II. Eq. 64. 1 In re Comroodeen Tyabjee, 1 El. & Bl. 319; 4 Jur. X. S. IIUS; 28 Law J. Q. B. - 6 and 7 Vict. chap. 73; London r. Eegor, 13 Q. B. 1; 13 .lur. 33; 17 Law J. g. B. Ex. 330. See, as to admitting attorneys of the inferior courts to the superior courts, 16 and 17 Vict. chap. 59, sec. 7; In re Myers, 8 t). B. 515; 10 Jur. 563; 15 Law J. (,). B. 209; Ex parte Patrick, 7 Jur. !«)3; 13 Law J. Q. B. 90; In re Watson, 11 Week. R. 730; 6 Jur. X. S. 1077; 30 Law J. Q. B. 1; 9 Week. K. 13; 3 L. T. X. S. 267; Ex parte Hogg, 11 L. T. X'. S. 598; 13 Week. li. 315. 3 Ex parte Benthall, 7 Seutt X. It. 407; Ex parte Gimlet, 11 Week. K. 210; 7 I.. T. X, S. .562: Ex parte Daggett. 1 Lown, M. .^- P. 1; Ex parte :\Ioses. 15 Jur. 1.5:!: 19 Law J. (^ B. 345; Ex parte .lames, 9 Com, B. 221 ; 1 Lown. JI. & P. 4; 5 Ex. 310; 19 Law J. Ex. 272; Ex parte Dearden, 5 Ex. 740; 1 Lown. M. \- P. 666; 20 Law J. Ex. 80; Anon. 11 AN'eek. R. 780. But see Ex parte Hayward. 5 Scott. 712. ■> Latham r. Hyde, 1 I). P. C. 594; 1 C. ^: M. 128; 3 Tyrw. 143. 6 Reg V. Buchanan, 8 C^). li. 883; 10 Jur. 736; 15 Law J. (J. B. 227. See Ackroyd / . Gill, 5 El. & B. SOS; 2 Jur. X^^. S. 184; 25 Law J. y. B. HI. An exemplification of the record of admi.ssion is of sufficient dignity to call for a plea of lud tic! rccoDf, and the facts as to a pevstm heii^g an attoruev can- not otherwise be questionnl. (Tidd's Pr. 71. ) § 55 ADMISSION TO PRACTICE. 97 § 55. The certificate. — Upon payment of the amount ac- crued since the expiration of the last certificate, or such further sum, by way of penalty, as the courts may direct, attorneys may be readmitted.^ If the attorney has discontinued practice, after his last certificate expired, he may be admitted without payment of arrears, as the word " neglect " in the statute is held to mean culpable neglect, anji does not apply to a person who has omitted to take out his certificate during; the interval of his ceasing to practice.^ The facts may be shown by affidavit.** Even if a party continue to practice as a solicitoi^ after his certificate has expired, he may, under circumstances, and where the omission did not arise from culpable neglect, be readmitted. So where an attorney in the country had given to his clerk directions, and the necessary money to take out his certificate, and the clerk applied the money to his own use, and the appli- cant, supposing his certificate had been taken out, continued to practice, after his former certificate had expired, he was read- mitted without fine ; * but in a subsequent case, it was said that attorneys must be put upon inquiry, for the good of the profes- sion ; and the court laid down a rule that thereafter there should be no readmission without fine, or with a merely nominal one.^ Various statutes require tlie attorney, immediately after liis admission, and annually thereafter, to take out an annual certificate, showing that certain du- ties, imposed by reason of his vocation, have been paid. For failure to do this, statutory penalties, and forfeitures, and disabilities are also imposed. (Cross v. Kaye, 6 Durn. & E. 663; Ex parte Jones, 4 Moore, 347; Sabin v. De Burgh, 2 Camp, 196; Nixon v. Hewitt, 10 Moore, 270; Prior v. Moore, 2 Maule & S. 605; Welch V. Pribble, 1 Dowl. & E. 215; 9 Geo. IV, chap. 49, sec. 9; 7 Geo. IV, chap. 44; 25 Geo. Ill, chap. 80; 37 Ibid. chap. 90, sees. 26, 30, 31: 36 Ibid. chap. 90, sec. 26; 54 Ibid. chap. 144; 55 Ibid. chap. 184; Davis*?,'. Edmonson, 3 Bos. & P. 282; 4 Esp, 14; Barnard v. Gostling, 1 New Eep. 245; 2 East, 569.) 1 37 Geo. ni, chap, 90, sec. 31. 2 Ex parte Matson, 2 Dowl. & E. 238; Ex parte Clarke, 2 Barn. & Aid. 314; Ex parte Scrope, 2 Taunt. 398. 3 Ex parte Cunningham, 7 Moore, 410; 1 Bing. 94: Ex parte Sherwood, 7 Moore, 493; Ex parte Davis, 1 Chit. 729; Ex parte Maliphant, 7 Moore, 495; Ex parte Murray, Turn. & E. 56. * Ex parte Dent, 1 Barn. & Aid. 189; Ex parte Winter, 1 Barn. & Aid. 190, note. 5 Ex parte Leacroft, 4 Barn. & Aid. 90; Ex parte Christian, 3 Moore, 578. See, as to taking out and renewing the annual certificate, Eeg. Gen, Q. B. C. P. & Ex. H, T, 16 Vict. 1853; 1 El. & B, app. 63; IB and 17 Vict, chap, 63, sec, 1; 54 Geo. Ill, chap. 144; 23 and 24 Viet, chap. 127, sees. 18, 19, 22, 23; 6 and 7 Vict, chap. 73, sec. 26; Keegan v. Mowlds, 10 L. T. N, S, 822; Ex parte Barnes, 2 B, C. A. & C— 7. 98 ADMISSION TO PRACTICE. § 56 § 56. Registration of attorneys' names. — I'he residence of many attorneys in London and Westminster being difficult to find, and consequantly much inconvenience arising in regard to serving them with pajjers, a rule w^as made in the Court of King's Bench ^ that the master should prepare an alphabetical book, and that the same should be kept at the master's office, in the King's Bench Walk, to Jje there inspected by any attorney, or his clerk, Avithout fee or reward, and that every attorney practicing in this court, and resident in London and Westmin- ster, or within ten miles of the same, should enter in such book, in alphabetical order, his name and place of abode, or some other proper place within the cities of London and Westminster, where he might be served with notices, summonses, orders, and rules ; and that as often as any such attorney should change his place of abode, or the place where he might be so served with notices, summonses, orders, and rules, he should make the like entry thereof, in the said book ; " and that ,all notices, summonses, orders, and rules, which do not require a personal service, shall be deemed sufficiently served on such attorney if a copy thereof shall be left at the place lastly entered in such book, with any person resident at or belonging to such place ; and if any such attorney shall neglect to make such entry, that then the fixing up of any notice, or the cojjy of any summons, order, or rule, for such attorney, in the said master's office, shall be deemed a sufficient service, unless the matter be such as shall require a personal service." Accordingly, it is usual for practitioners who live remote from the inns of court, or chanaery, to add to the place of their abode R. 156; 5 Dovvl. & L. 2H4; Ex parte AVebb, i D, & U. li-H: Ex parte Weymouth. 5 Dowl. & L. 60; 2 B. 0. R. 102; 7 and 8 Vict. chap. Sij, sec. i: Ex parte See wood, S Jur. 404; Ex parte Gude, IDowl. & L. 675; 7 Jur. 1016; Ex parte Grey, 5 Dowl. & L. 27.5; 12 .Jur. 119; Ex parte Taylor, 16 .Tur. 728; Ex parte Sewell, :i2 Beav. 47."): Anon. l(!.Jur. 222; Ex parte Smith, .'i:! Beav. 248; Ex parte Bray, 2 Dowl. &L. 9; 8,Jur. 875; V.i Law .T. Q. B. 240; Ex parte Rudge, 2 Ilnwl. X. S, liS2: 7 ,Tnr. oSl; 12 Law .J. Q. B. 187; Greene r. Reece, 8 Com. B. SS; Richards r. Suffield, 2 Ex. 616; 6Dowl. & L. 22; 12 Jur. 731; 17 Law .T. Ex. 1362; Ex parte Brunswiclv, 4 Ex. 492; 1.3 ,Jur. 1058; 19 Law .T. Ex. 112; FuUalove ;•. Parker, 12 Com. B. X. S. 246; 8. Jur. N. S. 1078; lil Law ,1. Com. P. 239; 10 "Wcelc. R. .Wl; 6 L. T. X. S. 353; In re Angell, 6 Dowl. & L. 144; Holdgate r. Slight, 2 Lown. M. & P. 662; 21 I^aw .T. (,). B. 74; .Matchett /■. Parks, 9 Mees. .'v \V. 767; 1 Dowl. X. S. 924; Ex parte Rob- inson, 2 Oinvl. & L. 9; 8 ,fur, 621. 1 Hil. 8 Geo. Ill; Tidd's Pr. 71; Imp. K. B. :i3; LotJt. :.!.-)7. §§ 57-8 ADMISSION TO PRACTICE. 99 tho name and place of abode of some other person, where, and with whom, notices, summonses, (jrders, rules, and other proceed- ings that do not I'equire personal scrvice,*may be left for them, near to such inns ; but when the name and place of abode of the attorney are entered, then service at that place is the proper service. § 57. Practicing in the names of each other. — If an attorney's name is set to a process without authority, the pro- ceedings may be set aside, and an attachment granted against the plaintiff's attorney;-' and a judgment entered up by an attorney's clerk, in the name, but without the knowledge or consent of a regular attorney, will be set aside. ^ If an attor- ney acts in the name of another, a demand of costs by the aot- ' ing attorney is good.^ It has been decided that if an attorney gives leave to another to practice in his name, he is answerable for what he does in his, name."* § 58. Effect of ■want of qualification. — Although a party subjects himself to various penalties for acting as an attorney or solicitor without the requisite qualification, yet generally it does not affect the proceedings taken by him in that character, and they cannot be treated as a nullity, whether taken in the name of the unqualified person, or in that of a regular attorney, without his consent ; ^ nor will they afford ground of error in the ^proceedings ; ^ but the courts will, on i^vooi of the circum- stances, order the proceedings stayed until a proper attorney is appointed,^ or to be set aside altogether if the client was aware of the want of qualification on the part of the attorney ^ whose name is made use of. lOppenli'eim /■. Harrison, 1 Burr, 20; Hawkins r. Edwards, 4 Moore, 603, i ."> Burr, 2B60, 3 Say. E, !i5, + 12 Mod, IJU6, '> Bayley t, Thomson, 2 Dowl. 655; 2 Car, & M, 673; Hill , . Mills, 2 Don'l, 696; Keg c. Burgess, 3 Nev. cS: P, 366; 8 Ad. & B, 275, 6 Haydon v. Udjun, Cro, Jao, 521. ' Bayley e. Thompson, 2 IJowl, 665; Hawkins t', Edwards, i Moore, 603; Chad- wick c. Hough, 2 Cromp. M. & E. 29, 164; Marsden's Bail, 4 Dowl, P. C. 654. » Norton r. Curtis, 3 Dowl, 245; Oppenheim / , Harrison, 1 Burr, 20; Hopwood /'. Adams, 5 Burr, 2660; Welcli -.', Pribble, 1 Dowl, & E, 215; Keader e. Bloom, 10 Moore, 261; 3 Bing. 9; Smith v. Wilson, 1 Dowl, P. (J, 215, 245; 2 Dowl, 655; 100 ADMISSION TO PRACTICE. §§ 69-60 An unqualified person practicing as an attorney cannot re- cover his fees, or any remuneration, for his trouble ; and where such proceedings are, for form's sake, taken in the name of a regularly admitted attorney, neither the one nor the other can recover ; ^ nor will the courts, in such cases, allow the costs to be recovered, indirectly, by an execution at the suit of the client, if the latter has not already advanced them to the attorney ; ^ but where the client is not aware of the attorney's disqualifica- tion, and has made advances to him on account of the costs, he is generally entitled to recover costs to the extent of those ad- vances, he consenting to take no advantage of his privilege in any pending proceedings.^ § 59. Re-admission. — An attorney who has been stricken off the rolls may be re-admitted.* The applicant must, before the ' commencement of the term next preceding that in which he in- tends to apply to be re-admitted, give notice thereof as in the case of an original admission.^ But the court will not re-admit an attorney who has discontinued practice for thirty years.® Persons convicted of misconduct, offenses, and especially felo- nies, will not be re-admitted, ^ except under very special circum- stances. § 60. The 6 and 7 Vict., chap. 73.— By the 6 and 7 Vict., chap. 73, sec. 1, no person shall act as an attorney or solicitor, or as such attorney or solicitor sue out any writ or process, or commence, carry on, solicit, or defend any action, suit, or other Hillcary v. Hungate, 3 Dowl. 56; Glyn v. Hutcbinson, 2 Ad. & E. 660; 3 Dowl. 529 ; Peterson v. Powell, 9 Bing. 620. 1 Hopkinson v. Smith, 7 Moore, 243; 1 Bing. 13. 2 Meek v. Wlialley, 1 Bing. N. C. 59; 2 Dowl.' 823. 3 "Wilson u. Knapp, 8 Dowl. 426; Reader v. Bloom, 10 Moore, 261. See Young V. Dowlman, 3 Younge & J. 24; Humphrey c. Harvey, 4 Moore & S. 500; 1 Bing. N. C. 59; 2 Dowl. 823. iRexw. Greenwood, 1 W. Black. 222; Ex parte Makinson, IS C. B. 661. 5 Eeg. Gen. Q. B. C. P. and Exch. H. T. 16 Vict. r. 7; 1 El. ,S: B. app. 63; 23 and 24 Vict. chap. 127, sec. 25 ; Ex parte Calland, 2 B. & A. 315. See In re Sill, 2 Jur. ST. S. 1232. See Ex parte Cole, 1 Doug. 114. 6 Ex parte Billings, 5 D. P. C. 395; 2 Har. & AV. 327. See Ex parte Brabant, 7 D. P. C. 622; 2 W. W. & H. 46; 3 Jur. 1152. ' Hawden, Ex parte, 9 D. P. C. 970; 5 Jur. 508; In re Garbett, 18 Com. B. 403: In re Pike, 11 Jur. N. S. 504, 860; :« Law J. Q. B. 121, 220. See In re Robins, 11 Jur. N. S. 504; 34 Law J. Q. B. 121. § 60 ADMISSION TO PRACTICE. 101 proceeding, in the name of any other person, or ]% hif^-own name, in the High Court of Chancery, or Courts of C^uceft's Bench, Common Pleas, Exchequer, or in certain specified, in- ferior, and special courts, or in any other court of law or equity in England or Wales, or act as an attorney or solicitor in any cause, matter, or suit, civil or criminal, to be heard, tried, or determined before any justice of assize, etc., unless such person be admitted and enrolled, and otherwise duly qualified to act as an attorney or solicitor, and be on the roll at the time of his acting in such capacity.^ ^ See as to articled clerks, admission, etc., ante, §§ 45-58. The 6 and 7 Vict., chap. 73, (1843) consolidating, amending, and repealing the former English statutes in regard to attorneys, repealed the following acts ; An act admitting attorneys — 15 Edw. II, chap. 1. An act regulating attorneys — i Hen. IV, chap. 18. An act providing that no lord of a franchise shall be attorney within the same — i Hen. IV, chap. 19, and portions of the act 1 Hen. V, chap. 4. An act touching warrants of attorney — 18 Hen. VI, chap. 9. An act regulating the number of attorneys in Norfolk, Suffolk, and Norwich —33 Hen. VI, chap. 7. So much of the acts concerning mispleading, jeofails, and attorneys, as related to entering warrants of attorney — 32 Hen. VIII, chap. .30, and 18 Eliz., chap. 14 sec. 3. An act to reform the multitudes and misdemeanors of attorneys and solicitors at law. and to avoid unnecessary suits and charges at law— 3 James I, chap. 7. So much of an act for the amendment of the law, and the better advancement of justice, as related to the filing of warrants of attorney — 4 and 5 Anne, chap. 16. An act for the better regulation of attorneys and solicitors — 2 Geo. II, chap. 23. A portion of the 5 Geo. II, chap, 18. An act to explain and amend the act 2 Geo. II, chap. 23—6 Geo. II, chap. 27. A portion of the 12 Geo. II, chap. 13 (so much as related to attorneys). A portion of the 22 Geo. II, chap. 46 (so much as related to attorneys). A portion of the 23 Geo. II, chap. 26 (so much as related to attorneys). A portion of the 30 Geo. Ill, chap. 19 (so much as related to the 2 Geo. II, chap. 23.) So much of the 37 Geo. Ill, chap. 90, as related to attorneys. An act to amend the several acts for the regulation of attorneys and solic- itors (except so far as the attorneys and solicitors of Ireland were affected thereby) — 1 and 2 Geo. IV, chap. 48. And the amendatory act, ,3 Geo. IV, chap. 16 (with the same exceptions). So much of the 1 and 2 AVm. IV, chap. 56, to establish a court of bankruptcy, as related to the admission and practicing of attorneys and solicitors in said courts. So much of the 5 and 6 Wm. I\', chap. 11, as related to the service of any clerk, and his admission and enrollment as an attorney or solicitor, or as to striking any person off the roll. So much of the 6 and 7 "Wm. IV, chap. 7, as related to striking any attorney or solicitor off the roll. 102 ADMISSION TO PRACTICE. § 60 The judges may, before admission, examine and inquire, by such ways and means as they may think proper, touching the articles and service, and the fitness and capacity of the candi- dates to act as attorneys; and may then, if satisfied, have the attorney's oath administered, in addition to the oath of allegi- ance ; and after such oaths are taken, they cause the applicant to be admitted an attorney of the court, and his name to be en- rolled as an attorney of the court. For the purpose of facilitating the inquiry touching the due service under articles, and the fitness and capacity of the per- son to act as attorney, it is lawful for the judges of the superior The, act 1 Vict. chap. 56, for amending the several acts for the regulation of attorneys and solicitors. So much of the 1 and 2 \'ict. chap. 45, as related to the admission and practice of attorneys and solicitors. So much of the following acts to indemnify, etc. , as related to striking any attorney or solicitor off the roll, viz: The 7 Wm. IV, chap. 12; 1 Vict. chap. 16; 2 and 3 Ibid. chap. 33; 3 Ibid. chap. 16; 4 Ibid. chap. 11; 5 Ibid. sess. 2, chap. 10: 6 Ibid. chap. 9. The following acts were not repealed or altered by the 6 and 7 Vict. chap. 73, viz: An act for allowing attorneys to make suits to several courts— 20 Hen. Ill, chap. 10. An act against champerty — 3 Edw. I, chap. 25. An act inflicting penalty upon a Serjeant or pleader committing deceit — 3 Edw. I, chap. 29. An act against maintainers of quarrels being suffered — 3 Edw. I, chap. 33. An act, viz; Certain actions wherein, after appearance, the tenant shall not be essoined, but may make his attorney — 3 Edw. I, chap. 42. An act, amongst other things, that attorneys may be made, where an apjjeal lieth not — 6 Edw. I, chap. 8. An act authorizing persons to make general attorneys in all pleas for or against them— 13 Edw. I, chap. 49. The acts 28 Edw. I, chap. 11; and 12 Edw. II, chap. 1. The acts 7 Kich. II, chap. 14; and 7 Hen. IV, chap. 13. An act that all persons, religious and secular, may make their general attor- neys to sue or plead for them in every Hundred and Wapentake— 15 Hen. VI, chap. 7. The acts 3 Hen. VII, chap. 1; 18 Eliz. chap. 5; 29 Eliz. chap. 5: 31 Eliz. chap. 10. The act 4 and 5 Anne, chap. 16, for the amendment of the law, and the better advancement of justice, except so much as relates to filing warrants of attor- ney. The act 12 Geo. I, chap. 29; 19 Geo. Ill, chap. 68; 23 Ibid, cliap. 33; 24 Ibid, chap. 42; 25 Geo. II, chap. 80; 34 Geo. Ill, chap. 14; 39 and 40 Ibid. chap. 104; 44 Ibid. chap. 59; 44 Ibid. chap. 98; 49 Ibid, chap. 28; 52 Ibid. chap. 63; 54 Ibid, chap. 144; 55 Ibid. chap. 184; 6 Geo. IV, chap. 16; 7 and 8 Ibid. chap. 29; 9 Ibid, chap. 25; 11 Ibid. ; and Will. IV, chap. 70. § 60 ADMISSION TO PRACTICE. 103 courts, or any eight or more of them, of whom the chiefs of the courts shall be three, from time to time to nominate and ap- point such persons to be examiners, and to make rules and regu- lations for conducting the examination. The master of the rolls, jointly with the judges, may nomi- nate and appoint examiners to make rules and regulations for conducting the examination of persons applying to be admitted as attorneys and solicitors, authorized to practice both in the courts, of law and the Court of Chancery. Following is the prescribed oath : " I, , do swear (or solemnly affirm, as the case may be) that I will truly and hon- estly demean myself in the practice of an attorney, (or solicitor, as the case may be) according to the best of my knowledge and ability. So help me God." ^ No person who has been admitted and enrolled is liable to be struck off the roll for or on account of any defect in the arti- cles of clerkship, or in their registry, or in the service under the articles, or in the admission and enrollment, unless the application for striking him off be made within twelve months from the time of his admission and enrollment, except in cases of fraud. ^ An attorney must not act as agent for persons not qualified. If he does, he may be stricken from the roll." Any person having taken the degree of bachelor of arts or bachelor of laws in the Universities of Oxford, Cambridge, Dublin, Dur- ham, or London, or in the Queen's University in Ireland, or the degree of bachelor of arts, master of arts, bachelor of laws, or doctor of laws, in any of the universities of Scotland, none of such degrees being honorary degrees, and who, at any time after having taken such degree, and either before or after the passing of this act, has been bound by and has duly served under articles of clerkship to a practicing attorney or solicitor for the term of three years, and has been examined and sworn, as provided by law, may be admitted and enrolled as an attor- ney or solicitor.* Where any person has, before the passing of 16 and 7 Vict. chap. 73, sees. 15, 16, 17, 18, 19. - 6 and 7 Viet. chap. 73. sec. 29. , 8 6 and 7 Vict. chap. 73, sec. 32. * 23 and 24 Vict. chap. 127, sees. 1 and 2, August 28th, 1860, amending the 6 and 7 Vict. chap. 73, and the 7 and 8 Vict. chap. 86, and the 14 and 15 Vict, chap. 88. 104 ADMISSION TO PRACTICE. § 60 the act, and at any time, after having taken such degree, been bound for five years, he may, after having duly served three years of such term in such manner as would have been required if he had been bound for three years only, and having been examined and sworn, and, with the consent in writing indorsed on his articles of the attorney or solicitor to whom he may be bound, to the immediate determination of his articles, be ad- mitted and enrolled ; and where such consent is given and acted upon by the person so made eligible to be admitted and enrolled, the articles of clerkship shall be deemed to have determined as if by effluxion of time. Persons having been bona fide clerks to attorneys, solicitors, or proctors, for ten years, may be admitted after three years' service.^ The judges may make regulations for persons who have passed certain examinations in the universities before ar- ticles, to be admitted after four years' service. The judges may require examination in general knowledge, either before articles or before admission, with power to dis- pense therewith in specified cases ; ^ but this provision is only applicable to persons who have not taken degrees or successfully passed the university examinations. The judges may also re- quire an examination in legal knowledge during the articles to ascertain the progress of the student. The 23 and 24 Vict., chap. 127, sec. 10, entitled " An Act to amend the laws relating to attorneys, solicitors, proctors, and cer- tified conveyancers," and passed in 1860, enacted, in section 10, that no person thereafter bound by articles of clerkship to any attorney or solicitor shall, during the term of service mentioned in such articles, hold any office or engage in any employment whatsoever other than the employment of clerk to such attorney or solicitor, and his partner or partners, if any, in the business, practice, or employment of an attorney or solicitor, save as by the Act 6 and 7 Vict., chap. 73, or the Act of 1860, otherwise provided, and that every person bound as aforesaid shall, before being admitted an attorney or solicitor, prove by the affidavit required under the fourteenth section of the Act of 6 and 7 Vict., that he has not held any office or engaged in any employment 1 23 and 24 Vict. chap. 127, sec. 24. - Ibid. sees. 7, 8, 9. § 60 ADMISSION TO PRACTICE. 105 contrary to the enactment now in recital, and that the form of such affidavit as aforesaid shall be varied by such addition thereto as may be necessary for that purpose. The restriction contained in this enactment is not to be en- forced in certain cases, where such consent and sanction as is provided by the Act of 37 and 38 Vict., chap 68, are obtained. That act, called the Attorneys' Act of 1874, and applicable only to England and Wales, provides that sec. 10 of the 23 and 24 Vict., above referred to, shall not ajDply to any cases in which any person bound by articles, as therein mentioned, shall, before or after he enters upon the office, or engages in the employ- ment, have applied for and obtained — 1. The consent thereto in writing of the attorney or solicitor to whom he is bound ; and — 2. The sanction thereto of one of the judges of one of the superior courts of law at Westminster, or the master of the rolls, or one of the judges of the High Court of Justice, to be evidenced by an order of such judge. This section applies to the case of any person bound by arti- cles expiring after or not more than two years before the pas- sage of the Act of 1874, who shall have held any office, or been engaged in any employment during the service under such arti- cles, before or after the passage of this latter act ; and who, within one year after such passage, or within one year after the expiration of his articles, shall prove by au affidavit from the attorney or solicitor to whom he is bound, or by such other evi- dence as shall be satisfactory to such judge, that the holding of such office, or being engaged in such employment, was with the consent of the attorney or solicitor to whom he was or is bound, and has not interfered with due service under such arti- cles ; and the judge hearing such application shall have power to make any order which he shall think fit as to the service by the person so bound as aforesaid, for the remainder of the term of service of his articles, or any part thereof, after the accept- ance of such office, or as to the passing of any examination. Not less than fourteen days before any such application to a judge is made, written notice of the application must be given to the registrar, which notice must state the names and resi- dences of the applicant, and of the attorney or solicitor to whom 106 ADMISSION TO PRACTICE. § "^ he is bound, the nature of the office or employment, and the time it is expected to occupy. Any such judge making any such order may, in and by the order, impose on the applicant such terms and conditions touching the gffice or engagement, and his employment therein, as such judge thinks fit. If any should be imposed, and the person authorized by the order shall accept the office, or engage in the employment, he shall, before being admitted an attorney or solicitor, prove to the satisfaction of a judge of one of the superior courts of law at Westminster, or the master of the rolls, or one of the judges of the High Court of Justice, and of the examiners, for the time being, appointed under the provisions of the Act of 1860, or amendatory acts, to examine persons applying to be admitted as attorneys and solicitors, that he has duly observed and fulfilled those terms and conditions.^ The examination before admission must extend to the fitness and capacity of the applicant to act in matters of business usu- ally transacted or performed by attorneys or solicitors.^ § 61. Solicitors and attorneys under the Supreme Court of Judicature Act of England, 1873. — By the English Su- preme Court of Judicature Act of 1873, 36 and 37 Vict., chap. 66, sec. 87, all persons admitted as solicitors, attorneys, or proctors, of or by law empowered to practice in any court the jurisdiction of which is by the act transferred to the High Court of Justice or the Court of Appeal, shall be called solic- itors of the Supreme Court, and shall be entitled to the same privilege, and be subject to the same obligations, so far as cir- cumstances will j)erinit, as if the act had not been passed; and all persons who, from time to time, if the act had not been passed, would have been entitled to be admitted as solicitors, attorneys, or proctors of, or been by law empowered to practice in, any such courts, shall be entitled to be admitted, and to be called solicitors of the Supreme Court, and shall be admitted by the master of the rolls, and shall, as far as circumstances will permit, be entitled, as such solicitors, to the same privileges, and 137 aud 38 Vict. chap. 68; 'Ja and 24 Vict, cliap. 127, sec. 10; 6 and 7 Viot. chap. 73. 2 23 and 24 Vict, cliap. 127, sees. 10, 11. § 62 ADMISSION TO PRACTICE. 107 be subject to the same obligations, as if the act had not been passed. Solicitors, attorneys, or proctors, to whom the section applies, shall be deemed to be officers of the Supreme Court, and that court, and the High Court of Justice, and the Court of Appeal, respectively, or any division or judge thereof, may exer- cise the same jurisdiction in respect of such solicitors or attor- neys as any one of the superior courts of law or equity might have exercised previously to the passage of the act in respect of any solicitor or attorney admitted to practice therein. By an act to amend and extend the Supreme Court of Judi- cature Act of 1873, (36 and 37 Vict., chap. 66) Parliament, in 1875, enacted ^ that, whereas, under sec. 87 of the principal act, solicitors and attorneys will, after the commencement of that act, be called solicitors of the Supreme Court, the i-egistrar of attorneys and solicitors in England shall be called the registrar of solicitors, and the lord chief justice of the Court of Common Pleas, and the lord chief baron, or any two of them, may from time to time, by regulation, adopt any enactments relating to attorneys, and any declaration, certificate, or form required under those enactments, to the solicitors of the Supreme Court, under sec. 87 of the principal act. § 62. Colonial Attorneys' Relief Act, 1874. — By the Colonial Attorneys' Relief Act, 20 and 21 Vict., chap. 89, cer- tain provisions were made for regulating the admission of attor- neys and solicitors of colonial courts in her majesty's superior courts of law and equity in England. By the Statute 37 and 38 Vict., chap. 41, so much of the former act as enacted that no person shall be deemed qualified to be admitted as attorney or solicitor, under the provisions of the act, unless he shall pass an examination to test his fitness and capacity, and shall make affidavit that he has ceased, for the space of twelve calendar months at the least, to practice as attor- ney or solicitor in any colonial court of law, and also so much of the act, and of any orders and regulations made thereunder, as relate to such examination, shall not apply to, nor shall com- pliance therewith, respectively, be required of, any person seek- ing to be admitted under its provisions, who shall have been in 1 38 and 39 Vict. chap. 77, sec. 14. 108 ADMISSION TO PRACTICE. § 63 actual practice for the period of seven years, at the least, as attorney and solicitor in any colony or dependency, as to which an order in council has been,, or may be, made as mentioned in the said act, and who shall have served under articles, and passed an examination previously to his admission as attorney and solic- itor in any such colony or dependency.^ § 63. Attorneys and Solicitors' Act for Ireland, 1866. By the Attorneys and Solicitors' Act for Ireland, 1866, enti- tled " An Act to amend the laws for the regulation of the pro- fession of attorneys and solicitors in Ireland, and to assimilate them to those of England," the various laws relating to the ad- mission and enrollment of attorneys and solicitors, and to the service of indentured apprentices to attorneys and solicitors in Ireland, were amended, altered, and consolidated.^ A registrar of all such attorneys, solicitors, and apprentices was also estab- lished. In the construction of the act, unless there is something in the subject or context rejDugnant to such construction, the word " attorney " means attorney of one or more of the superior courts of law at Dublin ; the word " solicitor " means solicitor of the High Court of Chancery in Ireland ; the word " regis- trar " signifies the registrar of attorneys and solicitors ; the ex- pression " the roll of attorneys and solicitors kept by the reg- istrar " means the roll or book of attorneys and solicitors, which by the act the registrar is required to keep ; and the expression " the Incorporated Law Society " means the society of the attorneys and solicitors of Ireland, acting under their then ex- isting or any future charter. Admission and enrollment. — No person can act as an attor- ney or solicitor, or as such attorney or solicitor sue out any writ or process, or commence, carry on, solicit, or defend any action, suit, or other proceeding, in the name of any other person, or in his own name, in the High Court of Chancery in Ireland, or in the courts of Queen's Bench, Common Pleas, or Exchequer at Dublin, or in the Court of Bankruptcy and Insolvency in Ireland, or in her majesty's Court 6f Probate in Ireland, or in the Landed 137 and 38 Vict. chap. 11; 20 and 21 Vict. chap. 39. 2 29 and 30 Vict. chap. 84. § 63 ADMISSION TO PBACTICE. 109 Estates Court in Ireland, or in the court of any chairman of any county or riding of a county, or in any court of civil or criminal jurisdiction, or in any other court of law or equity in Ireland, or act as an attorney or solicitor before any justice of assize, of oyer and terminer, or gaol delivery, or at any general or quarter sessions of the peace for any county, riding, division, liberty, city, borough, or place, or before any justice or justices, unless such person shall have been previously to the passing of the act (August 6th, 1866) admitted and enrolled, and other- wise duly qualified to act as an attorney or solicitor under or by virtue of the laws in force, or unless such person should, after the passage of the act, be admitted and enrolled, registered, and otherwise duly qualified to act as an attorney or solicitor, pursuant to the directions and regulations of the act, and unless such person shall continue to be so duly qualified and registered and on the roll at the time of his acting in such capacity, with some enumerated exceptions.^ No person to be admitted without serving an apprenticeship of five years. — The applicant must have been bound by indentures of apprenticeship to serve as an apprentice for and during the term of five years to a practicing attorney or solicitor in Ireland, and shall have duly served under such indentures for and during the said term of five years;, and such person must also, after the expiration of the said term of five years, have been exam- ined, in the manner directed, and sworn as by the laws in force required, previously to such admission, enrollment, and regis- tration. No attorney or solicitor can take or retain any apprentice who shall be bound by indentures, after such attorney or solicitor shall have discontinued or left off practicing as, or carrying on the business of, an attorney or solicitor, nor whilst such attorney or solicitor shall be retained or employed as a writer or clerk by any other attorney or solicitor ; and service by any apprentice under indentures to an attorney or solicitor for and during any part of the time that such attorney or solicitor shall be so em- ployed as writer or clerk by any other attorney or solicitor, shall 1 29 and 30 Vict. chap. 84, sec. 3. 110 ADMISSION TO PRACTICE. § 63 not be deemed or accounted as good service under such inden- tures. ^ Bankruptcy of attornei./. — In case any attorney or solicitor to whom any apprentice sliall be bound by indentures shall, before the end or determination of the contract, become bankrupt, or take the benefit of any act for the relief of insolvent debtors, or be imprisoned for debt, and remain in prison for twenty-one days, it is lawful for any of the courts of law or equity wherein such attorney or solicitor is admitted, upon the application of the ap- prentice, to order the indentures to be discharged, or assigned to such person and upon such terms and in such manner as the act provides, or otherwise, as the court thinks fit.-^ Perso7is talcing degrees at the universities. — Any person hav- ing taken the degree of bachelor of arts or bachelor of laws in the University of Oxford, Cambridge, Dublin, Durham, or London, or in the Queen's University in Ireland, or the degree of bachelor of arts, master of arts, bachelor of laws, or doc- tor of laws in any of the universities of Scotland, none of such degrees being honorary degrees, and who at any time after having taking such degrees, and either before or after the pass- ing of this act, has duly served under indentures of apprentice- ship to a practicing attorney or solicitor for the term of three years, and has been examined and sworn in accordance with the practice of the Court of Chancery, or suj^erior courts of law in Ireland, may be admitted and enrolled and registered as an attor- ney or solicitor. Where any pierson has before the act. and at any time after having taken such degree, been bound for anv period exceeding three years, he may, after having duly served three years of such term in such manner as would have been required if he had been bound for three years only, and having been examined and sworn, and with the consent in writino- (in- dorsed on his indentures of apprenticeship) of the attornev or solicitor to whom he may be bound to the immediate determina- tion of his indentures of apprenticeship, be admitted, enrolled, and registered as an attorney or solicitor, and whore such consent is given and acted upon by the person eligible to be admitted, enrolled, and registered, the indentures of apprenticeship are 1 ■£) iind 30 Vict. (ISdil) cliaii. S4, kci-s. -t, :.. ■•^21) and :;il Vii-t. i-liap. S4, ser. (i. § 63 ADMISSION TO PRACTICE. Ill deemed to have determined as if they liad determined by efHiixion of time.^ Persons having been admitted at the har maij he -aduntted after three years service. — Every person who has been called to the degree of utter barrister in Ireland,- and after ceasing to be a barrister has been bound by indenture to serve as an appren- tice, for any term exceeding three years, to a practicing attorney or solicitor, and has in either of such cases continued in service for the term of three years, and during the whole of such three years served in the manner required for persons who have taken degrees in the universities, and been examined and sworn after the expiration of such term of three years, may be admitted, enrolled, and registered as an attorney and solicitor : provided, that In the case of any such person who has been bound for a period exceeding three years, it is necessary for such term to be determined with consent, as in the case of persons having taken degrees who may have been bound for a period exceeding three years before the passing of the act.^ Persons attending certain lectures and passing certain exam- inations admitted after four gears' service. — Every person who, as a matriculated or as a non-matriculated student of the Uni- versity of Dublin, or any of the queen's colleges in Ireland, shall have attended or shall attend any prescribed lectures, and shall have passed or shall pass any prescribed examinations, of the professoi-s of the faculty of law in the University of Dub- lin, or in any of the queen's colleges, for a period of two colle- giate years, and who shall have duly served as an apprentice under indentures for the term of four years, in like manner as by the act provided respecting the service for the term of five years, shall, at any time after the expiration of five years from the commencement of attendance on such lectures or of such period of service, which shall first happen, be qualified to be sworn and to be admitted as an attorney or solicitor respectively, accordino- to the nature of his service of the several and re- spective superior courts of law or equity in Ireland, as fully and effectually, to all intents and purposes, as any person ha\ing been bound and having served five years is qualified to be sworn, i2'J and 30 Met, 186B, cliaii. 8i, sec. 7. ^Ibid. sec. S. 112 ADMISSION TO PRACTICE. § 63 and to be admitted or enrolled and registered an attorney or solicitor under or by virtue of the act.^ Bona fide clerks to attorneys or solicitors for ten years may he admitted after three years' service. — Any person who shall, for the term of ten years, have been a hona fide clerk to an attorney or solicitor, and during that term shall have been hona fide engaged in the transaction and performance, under the direction and superintendence of such attorney or solicitor, of such matters of business as are usually transacted and performed by attorneys and solicitors, and who shall produce to the exam- iners satisfactory evidence that he has faithfully, honestly, and diligently served as such clerk, and who, after the expiration of the ten years' term, and after having been examined as may have been or may be required for the time being of persons seeking to become apprentices to attorneys or solicitors, has been bound by and has duly served under indentures of appren- ticeship to a practicing attorney or solicitor for three years, and has been examined and sworn as provided for the admission of attorneys and solicitors, may be admitted and enrolled as an attorney and solicitor. No such apprentice who shall have served two years or up- ward of such term of ten years in the Dublin office of an attorney or solicitor, or firm of attorneys or solicitors, shall be required to attend lectures or keep terms in Dublin during his apprenticeship.^ The necessary affidavit. — Whenever any person is bound bj^ indentures to serve as an apprentice to any attorney or solicitor, the latter shall, within six months after the date of the inden- tures, make and duly swear, or cause or procure to be made and duly sworn, an affidavit of such attorney or solicitor having been duly admitted, and also of the actual execution of every such indentures by him, the said attorney or solicitor, and by the apprentice ; and in every such affidavit shall be specified the names of the attorney or solicitor and the apprentice, and their places of abode respectively, together with the day on which the indentures were actually executed. Every such affidavit must be filed within six months next after the execution of the 129 and 30 Vict. (186B) chap. 84, sec. 0. " Ibid. sees. 10, 11. § 63 ADMISSION TO PRACTICE. 113 indentures, with and by the officer appointed or to be appointed for that purpose, who shall thereupon enroll and register the indentui'es, and make and sign a memorandum of the day of filing such affidavit upon the affidavit, and also upon the inden- tures.^ The affidavit must be produced on applying for admis- sion, unless the court or judge shall be satisfied that the same cannot be produced, and shall think fit to dispense with its pro- duction. A book is to be kept for entering the substance of the affidavits, with the names and residences of the attorney or so- licitor, and of the apprentice, which book may be searched by any person during office hours. Apprentices whose masters have died, or left off practice, may enter into fresh indentures for the residue of the term ; and so if the indentures have been canceled by mutual consent, or if the apprentice is legally discharged before the expiration of the term by order of court. A similar affidavit must be made, as before mentioned, of the execution of the second indentures. The apprentice may also be bound by assignment of his former indentures.^ In case of difficulty in procuring assignments, the courts have power to order the indentures to be assigned to such pei'son as to the court or judge may seem fit, and the assignment so made has the same effect as a voluntary one. Apprentices, before admission, must make the affidavit of actual service, and that they have not held any office or engaged in any employment whatsoever other than the emjiloyment of ajJ- prentice. The form of the affidavit is to be approved by the judges of the court. Certain judges sjjecified may require examination in the gen- eral knowledge of the applicant, either before indentures or be- fore admission ; and power is granted to them to dispense with the same in special cases. Before being bound or admitted, as the case may be, the applicant must obtain from the examiner a certificate of having satisfactorily passed the examination.^ The judges may also require an examination of the clerk in leo-al knowledii'e dnrino; the time he is articled, so as to ascertain 1 29 and 30 Vict. (tSO^J) chap. Si, sees. 12, 1:!. -'■ Ibid. SHcs. 13-16. 3 Ibid. s(.-cs. 17-19. A. & C— 8. 114 ADMISSION TO PRACTICE. § 63 the progress he has made. Persons, on applying for admission, must also be examined as to their fitness and capacity. If found qualified, the usual oath is administered, and the applicant is admitted an attorney or solicitor of the court, and his name is enrolled and registered. The examination, before admission, extends to the fitness of the applicant to transact all business usually transacted by attorneys or solicitors.^ Persons duly admitted attorneys of any one of the superior courts of law at Dublin are entitled, upon production of their admission therein, or an official certificate thereof, and that the same still continues in force, to be admitted as an attorney in any other of the superior courts, or in any inferior court of law in Ireland, upon signing the roll of such court where any roll exists. Striking off the rolls. — No person who has duly served his ap- prenticeship under indentures is prevented or disqualified from being admitted and enrolled ; nor liable to be struck off the roll if admitted, in consequence of his master, to whom he was bound, having been after such services struck off the roll, pro- vided the apprentice be otherwise entitled to be admitted and enrolled ; nor is any person admitted and enrolled liable to be struck off the roll on account of any defect in the indenture of apprenticeship, or in the registry thereof, or in his service under the indentures, or in his admission and enrollment, unless the ap- plication for striking him oft' the roll be made within twelve months from the time of his admission and enrollment, except in cases of fraud.^ Where the name of any attorney or solicitor is ordered to be struck off the roll on his own application, or that of anv other person, the rule or order for that purpose must be entered with the registrar, and the latter must strike such name off the roll and mark the order as having been entered. Upon the production of an office copy of the order of the superior courts of law or court of chancery, and an affidavit of identity, the name of such person may be stricken from the rolls of any other court in which he practices, or suspended for the time mentioned in the order, and, miiti/tls /niitdiiJift, the same practice obtains in case nf his restoration to the rolls. 1 29 and 30 Vict, cliap. 84, sees. :i(l-2'>. "^ Ibid. sees. 38-40. §§ 64-5 ADMISSION TO PRACTICE. 115 Every ijerson who acts as an attorney or solicitor contrary to the statute, or who in his own name, or in the name of any other person, acts as a proctor without being qualified, is guilty of a contempt of court, and may be punished accordingly ; and is incapable of maintaining any action or suit for any fee or reward, or for his disbursements, and he also forfeits in addi- tion the sum of £50. The judges or the courts have power to dispense with these statutory regulations under special circumstances.^ § 64. Scotland — Members of the Faculty of Advocates in Scotland may be admitted as attorneys and solicitors in England and Wales. — It was enacted by sec. 15 of the Act 23 and 24 Vict., chap. 127, that every person who had been ad- mitted and enrolled as a writer to the signet or solicitor before the supreme courts in Scotland, or a procurator before any of the sheriff's courts of Scotland, should be entitled to be admitted and enrolled as an attorney or solicitor in England on three years articles ; and by the Statute of 35 and 36 Vict., chap. 81, passed in 1872, similar privileges were conferred on members of the Faculty of Advocates in Scotland ; and every person who has been admitted a member of the Faculty of Advocates in Scot- land, and who, whether before or after the passage of the act, has dulyser\ed under articles of clerkship in England or Wales, to a jDracticing attorney or solicitor for the term of three years, and has been examined and sworn in manner directed by the Act of 6 and 7 Vict., chap. 73, and amendatory acts, may be admitted and enrolled as an attorney and solicitor in England and Wales. - § 65. In the United States. — It is not lawful for any judge appointed under the authority of the United States to exercise the profession or employment of counsel or attorney, or to be epgaged in the practice of the law, and any person offending against the prohibition of this statute shall be deemed guilty of a hio-h misdemeanor.^ The same prohibition extends to clerks, 129 and 30 Vict. chap. 84, sees. 44, 45, 46, 48. 235 and 36 Vict. chap. 81; 23 and 24 Vict. chap. 127; 6 and 7 \'ict. chap. 73. 3 2U. S. Stats, at L. 788. 116 ADMISSION TO PRACTICE. § 66 assistant or deputy-clerks, of any territorial, district, or circuit court, or of the C(jurt of Claims, or the Supreme ( Vjurt of the United States, to marshals and dej)uty-marsha]s of the United States within the district for whicli they are appointed, as to any cause depending in either of said courts, or in au)- district for which they are acting as such officers.^ Whosoever violates these last provisions shall be stricken from the roll of attorneys by the court, upon complaint, upon which the respondent shall have due notice, and be heard in his defense ; and in the case of a marshal or deputy-marshal so acting, he siiall be recom- mended by the court for dismissal from office.^ Members of cither house of Congress cannot practice in the Court of Claims.'^ Bankruptcy. — Proceedings in bankruptcy may be conducted by the bankrupt in person in his own behalf, or by a petitioning or opposing creditor ; but a creditor will only be allowed to man- age before the court his individual interest. Either party may appear and conduct the jjroceedings by attorney, who shall be an attorney or counsellor authorized to practice in the circuit or district court. The name of the attorney or counsellor, with his place of residence and business, shall be entered upon the docket with the date of the entry. AH papers or proceedings ofEered by an attorney to be filed shall be indorsed, as above required, and orders granted on motion shall contain the name of the party or attorney making the motion. Xotices and orders whicli are not required to be served on the party personally, may be served upon his attorney. ■* Xo allowance shall be made against the estate of the bank- rupt for fees of attorneys, solicitors, or counsel, except when necessarily employed by the assignee, when the same may be allowed as a disbursement. The necessity and reasonableness of disbiirseuients .shall in all cases be passed upon by the court.^ § €6. United States Supreme Court. — It is requisite to the admission of attorneys or counsellors to practice in the Su- 117 r. S. stats, at I.. 411, 2 Ibid. 3 12 U. S. Stats. 7(;.-,. ■•(iciuTal Orders in Haiikruptcy, adopted April Vlth, 1S7,"), Supreme Cuurt nt' United Stales, No. Ill; Desfy's Fed. Proe. p. :'.:«; In re Hill, 1 Ben. ;!::i;; In re Siiflierland. ]>ea Scam. 4(5. 3 Ex parte Fellows, 1! Scam. 3i;9. "■ liules, 43 Iowa, im; Code, sec. '-'OS. §§ 74-5 ADMISSION TO PRACTICE. 125 § 74. Nevada. — The supreme court, upon ;i]>pllcation of the district judge of any judicial district, will appoint a committee to examine persons applying for admission to practice as attor- neys and counsellors at law. Such committee will consist of the district judges and at least two attorneys resident of the district. The examination by the committee so appointed shall be con- ducted and certified according to the following rules : The applicant shall be examined by the district judge and at least two others of the committee, and the questions and answers must be reduced to writing. No intimation of the questions to be asked must be given to the applicant by any member of the committee previous to the examination. The examination shall embrace the following sub- jects : the history of the State and the United States ; the con- stitutional relations of the State and Federal aovernments : the jurisdiction of the various courts of the State and of the United States ; the various sources of municipal law ; the general prin- ciples of the common law relating to property and personal rights and obligations ; the general grounds of equity jurisdic- tion and principles of equity jurisprudence ; rules and princi- ples of pleadings and evidence ; practice under the State, civil, and criminal codes ; remedies in hypothetical cases ; the course and duration of the applicant's studies. The examination is not expected to extend into details, but only sufficiently so to fairly test the extent of the applicant's knowledge and the accuracy of his understanding of those sub- jects and books which he has stu4.S; 15 Law J. X. S. Q. B. 131; 10 Jur. 38T. 3 In re Aitken, 4 Barn. & Aid. 47; In re Cardross, 5 Mees. & W. 547. ^In re Hilliard, 2 IJowl. & L. 921; In re Greaves, 1 Cromp. & J. :j74 ; Evans «. Duncomb, Ibid. 372; In re Patterson, 1 Dowl. 468; In re JTairtliorne, 3 Dowl. & L. 548; Tittertonu. Slieppard, Ibid. 775; In re Swan, 15 Law J. Q. B. 402; Garry V. Wilks, 2 Dowl. 079; Anon. 2 Barn. & Adol. 706. § 79 SUMMARY JURISDICTION. 139 character.^ The jurisdiction has been extended to personal un- dertakings, whether within the scope of the attorney's authority or not.^ Where an attorney undertakes to put in bail for a de- fendant, the' court may compel him, under pain of an attach- ment, to put in bail or render his principal ; although such un- dertaking, if given to the sheriff, might be void or irregular.^ The court will also enforce an undertaking, by an attorney on behalf of a client, to pay damages and costs, where the other party has been thereby induced to consent to take a verdict for a certain sum, instead of going to a jury ; ^ and where the solicitors of the assignees of a bankrupt tenant, on whose lands a distress had been levied by the landlord, gave a written under- taking as follows : " We, as solicitoi-s to the assignees, under- take to pay to the landlord his rent, j)rovided it do not exceed the value of the effects distrained," they were held personally bound.^ Although attorneys have been held strictly to the performance of undertakings, and punished for the breach of them, yet they have not usually been summarily compelled to indemnify the person to whom such an undertaking has been given, against damages arising from its breach. The remedy is against the attorney by action.'' § 79. Acting -without authority. — When an attorney brings an action in the name of a person without his authority, he becomes liable to the summary jurisdiction of the court, who may stay the proceedings, on motion, and make the attorney pay the costs. '^ On an application by a defendant to stay proceed- iJn re Aitken, 4 Barn. & Aid. 47; In re Knight, 1 Bing. 91; Ex i^arte Bodeu- ham, 8 Ad. &E.595. ^Xveson v. Conington, 1 Barn. & C. IBO; 2 Dowl. & K. 307; Anon. 1 Chit. 129a; 2 Cliit. 36; Morris v. .Tames, 2 Bond. Jur.'842. But see Jacobs t'. Magnay, 7 Lond. Jur. 326: 12 Law .J. X. S. 93. 3 Rogers v. Reeves, 1 Term Rep. 422; Sedgvvorth v. Spicer, 4 East, 569; Lewis I,. Knight, 1 Dowl. O. S. 261; 8 Bing. 271; 1 Moore & S. 353. East, 127; Smith's Case, 1 Brod. & B. 522; Leigh's Case, 1 Munf. 481; State ". Chapman, 11 Ohio, 4-30. * Jackson ji. State, 21 Tex. Iiij8. 5 Dillon V. State, 6 Tex. 55. 6 De Armas' Case, 10 Mart. 123. 142 SUMMARY JURISDICTION. § 80 legal learning to conduct causes in court for suitors. The order of admission is the judgment of the court that they possess the requisite .qualifications, both in character and learning.^ They become by such admission officers of the court, and hold their office during good behavior, and can only be deprived of it for misconduct, ascertained and declared by the judgment of the court, after opportunity to be heard has been afforded. While there may be cases of such gross and outrageous conduct in open court as to justify very summary proceedings for the re- moval or suspension of an attorney from office, even then he should be heard before he is condemned. The principle that there must be citation before hearing, and hearing or opportunity of being heard before judgment, is essential to the security of all private rights. Without its observance, no one would be safe from oppression v^rherever power may be lodged. Mandamus is the appropriate remedy to restore an attorney disbarred, where the court below has exceeded its jurisdiction in the matter.^ And this is more necessary in the United States courts, as neither error nor appeal will lie in such cases. With- out the use of the writ of mandamus, however flagrant the wrong committed against these officers, they would be destitute of redress. The attorney or counsellor disbarred through caprice, prejudice, or passion, and thus suddenly deprived of the only means of an honorable suppoi't of himself and family, upon a contrary doctrine, would be utterly remediless. It is to be con- sidered, also, that whenever the controversy is a matter like a contempt, that rests within the discretion of the court, even mandamus will not lie to compel a court to alter the punishment if authorized by law."' As both the admission and removal of attorneys are judicial 1 Ex parte Garland, i Wall. 378; Jack.son r. State, 21 Tex. 668. 2 Ex parte Robinson, 19 Wall. 505; Ex parte Garland, 4 Wall. 378: Ex parte Heyfron, 7 How. (Miss.) 127; Withers r. State, 36 Ala. 252; People i\ Turner, 1 Cal. 148; State v. Start, 1 Iowa, 499; Fletelier r. Daingerfleld, 20 Cal. 430; Beene V. State, 22 Ark. 157; Ex parte Bradley, 7 Wall. 364; Bradley c. Fisher, 13 Wall. 364. See Ex parte Secombe, 19 How. 13; Ex parte Burr, i) A\'heat, 530; Florida !'. Kirke, 12 Fla. 278; White's Case, 6 Mod. IS; Leigh's Case, 3 Ibid. 335; Carth. 169: Rice V. Commonwealth, 12 Fla. 472. See McLaughlin v. Court, 3 "W'ils. & S. 272. 8 People V. Turner, 1 Cal. 143, 188; People v. Justices, 1 Johns. Cas. 181; Ex parte Burr, 9 Wheat. 529; 2 Cranch C. C. 379; Ex parte Secombe, 19 How. 9. See also pos(, § 84. § 80 SUMMARY JURISDICTION. 143 acts,^ the judges, as judicial officers, are not liable to civil actions for any judicial act done within their jurisdiction, and in case of superior courts, and courts of general jurisdiction, the judges seem not to be liable for judicial acts, even when in excess of their jurisdiction, unless, perhaps, where they are done mali- ciously or corruptly.^ An action for damages will not, there- fore, lie against a court of general jurisdiction for removing, whilst holding court, an attorney at law from the bar for mal- practice and misconduct in liis office, the court being empowered by statute to remove attorneys for " any deceit, malpractice, or other gross misconduct." " The power of removal from the bar is possessed by all courts which have authority to admit attorneys to practice. It is a power which should only be exercised for the most weighty rea- sons, such as would render the continuance of the attorney in practice incompatible with a proper respect of the court for itself, or a proper regard for the integrity of the profession. And, except where matters occurring in open court, in presence of the judges, constitute the grounds of its action, the jjower of the court should never be exercised without notice to the offend- ing party of the grounds of complaint against him, thus afford- ing him ample opportunity of explanation and defense." ^ "This is a rule of natural justice, and is as applicable to cases ^'here a proceeding is taken to reach the right of an attorney to practice his profession, as it is when the proceeding is taken to Teach his real or personal property. And even where the mat- ters constituting the grounds of complaint have occurred in open court, under the personal observation of the judges, the attorney should ordinarily be heard before the order of removal is made, for those matters may not be inconsistent with the absence of improper motives on his part, or may be susceptible of such ex- 1 People t. Turner, 1 Cal. 143, 188; People v. Justices, 1 Johns. Cas. 181; Ex parte Burr, 9 Wheat. 529; 2 Crauch C. C. 379; Ex parte Secombe, 19 How. 9. 2Randnn v. Brighan, 7 "Wall. 523; Eloyd & Barker's Case, 12 Coke, 25; Taafee v. Downes, 3 Moore P. C. C. 41; Hamond v. Howell, 1 Mod. 184; 2 Ibid. 218; Bush- ell's Case,' Vaughan, 135; Yates v. Lansing, 5 Johns. 283; 9 Ibid. 395. See also post, § 90. 3 Bradley v. Eisher, 13 Wall. 356; 7 Wall. 364; In re Percy, 36 N". Y. 651; Anon. 22 W^'end. 656; In re Peterson, 3 Paige, 510; Jackson v. State, 21 Tex. 668. See post, § 83. 144 SUMMARY JURISDICTION. § 80 planation as would mitigijte their offensive character ; or he may be ready to make all proper reparation and apology. Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the profession it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family. A removal from the bar should, therefore, never be decreed where any punishment less severe — such as reprimand, temporary suspension, or fine — would accomplish the end desired." ^ " But, on the other hand, the obligation which attorneys im- pliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the bar, is not merely to be obedient to the constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their judicial acts." So that where an attorney threatened the presiding justice, as he was descending from the bench, with personal chastisement, for alleged conduct of the judge during the progress of a cause, this was held sufficient ground for striking the attorney's name from the rolls. But, even in such a case, the court errs in not citing the attorney to show cause why such an order should not be made for the offensive language and conduct, and affording him opportunity for explanation, or defense, or apology. But still such an act is a judicial act, though erroneous, and the judge cannot be held civilly liable in damages.^ The end to be attained is protection, not punishment. As punishment, removal from the office is unreasonably severe, for those cases in which the end is reclamation, not destruction, and for which reprimand, suspension, fine, or imprisonment seem to 1 Bradley v. Fisher, 13 Wall. 355; 7 Wall. 3G4. 2 Bradley r. Fisher, 13 Wall. 35G; 7 '\'\'aU. 304; Davis' and Clifford, ,JJ., dissent- ing from the rule laid down, that a judge is exempt when acting maliciously and corruptly. § 80 SUMMARY JURISDICTION. 145 be the more adequate instruments of correction ; for expulsion from the bar blasts all prospects of prosperity to come, and mars the fruit expected from the training of a lifetime. For this reason, statutes to i-egulate attachment and summary pun- ishment for contempts, seem to be inapplicable to this class of cases. Expulsion may be proper when there has been no con- tempt at all, as in cases of brutality, drunkenness, and the whole circle of infamous crimes. It is one thing to remove from of- fice for unfitness, and another to punish for contempt. In fact, the court may have recourse to both together, and can, therefore, proceed on the ground of unfitness, and waive the contempt. Any breach of the official oath is a valid cause for proceeding in the former. The oath looks to nothing like allegiance to the person of the judge, unless in those cases where his person is so inseparable from his office that an insult to the one is an indig- nity to the other. But professional fidelity may be violated by acts which fall without the line of professional functions, and which may have been performed out of the pale of the court. Such would be the consequence of beating or insulting a judge in the street, for a judgment in court. An offense of this kind, practiced on a single judge of a court consisting of several, is an offense against the court, as much so as if it were repeated on each individual member, for the consequences to suitors and the public are the same. In such a case, whether the offender be guilty of contempt or not, his name may be stricken from the roll. An attempt to overawe the bench by menace, challenge, or the employment of an engine so powerful as the press, is an of- fense of the same stamp, the difference being but in the means of committing it. The conduct of a judge, like that of every other functionary, is a legitimate subject of scrutiny, and where the public good is the aim, such scrutiny is as open to an attor- ney of his court as to any other citizen. Even a battery may be committed by an attorney on a judge, consistently with the official relation, or rather not in violation of it ; but it must be provoked in matters of social intercourse, or as between man and man, and the provocation must not arise out of rulings, judgments, or actions of the judge as a court or as a member of a court. This is the distinction. It is the motive, therefore, which A. & C— 10. 146 SUMMARY JURISDICTION. § 80 makes the invasion of the judge's rights a breacli of professional fidelity, from which he is to be i^rotected for the sake of the public and the suitors of his court, not for his own. A publication of a letter in a newspaper, over the signature of members of the bar, in which it was stated that " the pub- lic confidence seems to be withdrawn, alike from the bar and the court," accompanied by a suggestion that the judge's re- tirement from the bench might be the means of restoring it, has been held a possible impertinence, but not a breach of pro: fessional fidelity, and not good cause for expulsion from the bar.^ In Ex parte Burr, 9 Wheat. 529, the application was in the Supreme Court of the United States, for a rule to show cause why a mandamus should not issue to the circuit court for the District of Columbia, commanding that court to restore one Burr, an attorney thereof, who had by its order been suspended from practice for one year. Marshall, C. J., in expressing some doubts as to the course the court should pursue, said : " On one hand, the profession of an attorney is of great importance to an individual, and the pros- perity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him ; on the other, it is extremely desirable that the respecta- bility of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some con- trolling power, some discretion, ought to reside in the court. This discretion ought to be exercised with great moderation and judgment, but it must be exercised ; and no other tribunal can decide, in a case of removal from the bar, with the same means of information as the court itself. If there be a revisins tribu- nal, which possesses controlling authority, that tribimal will al- ways feel the delicacy of interposing its authority, and would do so only in a plain case." The application was, under the cir- cumstances, denied, the conduct of the court below not being irregular or unjust, or void for want of jurisdiction. iCase of Austin and Otliers, 5 Eawle, 191; State r. Kirk, 12 Fla. 278; Rice's Case, 18 B. Mon. 472; Walker v. State, i W. Va. 749; Beene t\ State, 22 Ark. 149. See In re "Wallace, Law R. 1 P. C. 283; Ex parte Bradley, 7 AVall. 364; Withers v. State, 35 Ala. 252; In re Moore, (i3 N. C 397; Ex parte Biggs, 64 N. C. 202; Brad- ley u. risher, 13 Wall. 335; Dickens' Case, 117 Penn. 169. § 80 SUMMARY JURISDICTION. 147 The summary jurisdiction of the courts over attorneys is suf- ficiently accounted for by the necessary and inherent control vested in them over the conduct of their own officers, confirmed as it was by the early statute, Westminster 1, which enacted that Serjeant counters or others (including attorneys, etc.,) guiltv of malpractice, should be imprisoned and be prevented from prac- ticing.^ In the exercise of their general power, the courts at Westminster would order an attorney or solicitor to be struck off the rolls, for any gross misconduct or malpractice in the course of an action or suit,^ as for willfully proceeding in an action not legally commenced ; ^ forging a writ ; * fraudulently altering a roU,^ record, or paper book ; " signing without authority jjlead- ings at law or in equity, in another's name or in a fictitious name ; ' procuring a witness to keep out of the way on a trial ; ^ conspiring to pack a jury ; ^ or hiring straw bail.^" In gross cases the courts have sometimes resorted to this mode of jJun- ishment, even where the conduct complained of did not occur in an action or suit, as where an attorney has grossly abused a con- fidence reposed in him by a client.^^ The courts of Westminster have also invariably ordered an attorney or solicitor to be struck off the roll after a conviction for felony, the conviction itself being considered to render the party unfit to belong to the prof ession.^^ The same doctrine has been applied to misdemeanors, as to sedition,'^ extortion, ^* con- spiracy ; ^^ but in these offenses the circumstances should appear, so that it may be seen whether they are of an aggravated na- 1 In re Martin, 6 Beav. 337; Rex v. Back, 9 Priee, 349; Ex parte Fisher, Ibid. 694; Ex parte Prankerd, 3 Barn. & Aid. 257. 2 Vin. Abr. Atty. "Q." 8 Jerome's Case, Cro. Car, 74; Y. B. 20 Henry VI, fol. 37. * Osbaston's Case, 30 Bliz. Cro. Car. 74. 5 4 Inst. 100. 6 Sulliard's Case, 2 Roll. Rep. 459. ' Smith V. Matham, 4 Dowl. & R. 738. 8 AVilliams r. Hill, 1 Dowl. N. S. (iU9; 10 Mees. & W. 28. 9 Hanson's Case, Moor. 882; 1 Brownl. 44. i» Dicas V. Warm, 2 Dowl. 812; Clifford v. Porter, 5 Dowl. 226. 11 In re Martin, 6 Beav. 337; Goodwin v. Gosnell, 2 Colly. C. C. 457. 12 Ex parte Brounsall, 2 Cowp. 829; Rex v. Vaughn, 1 Wils. 22; 2 Halst. 162. 13 Ex parte Frost, 1 Chit. 558. " Rex V. Southerton, 6 East, 142. 16 Anon. 1 Chit. 557. See Smith v. State, 1 Yerg. 228; In re King, 8 Q. B. 129; 6 L. T. 149. 148 SUMMARY JURISDICTION. § 80 ture, as convictions sometimes take place where there is very slight culpability.! The court may strike from the rolls for sub- ornation of perjury.^ Although attorneys cannot be called on to answer affidavits so as to disclose matter to criminate themselves,'^ yet the courts have in case of imputed misconduct, which might subject an at- torney to an indictment, at once entertained a motion to strike from the rolls, as where an attorney in a cause attempted to pro- cure the absence of a witness.* It has been held that any at- torney convicted of a felony forfeits his office and loses his right to practice, even without an order removing him.''' An attorney may be removed for violating his official oath ; for conviction of perjury, or other felony ; for obtaining money of his client by false pretenses ; for advocating the admission in evidence of a forged copy of a letter, knowing it to be forged, when offered by his associate counsel ; for ceasing to possess a good moral character, and for any ill practice attended with fraud and corruption, and committed against the principles of justice and common honesty.^ A pardon for a felony may not affect the offense of the violation of professional oath and duty, nor relieve the attorney from the penalty of removal from the bar for this misconduct.^ An attempt to render an attorney incapable of performing his professional duties, in order to obtain an undue advantage of him in the trial of a cause, is good ground for striking from the roll.^ The institution of proceedings by one attorney, from im- 1 Anon. 1 Dowl. 17-1, 364. See as to libels by an attorney, Anon. 2 Dowl. 110; In re Harndorn, 9 Dowl, 970. See as to forgery, perjurj', subornation of per- jury, barratry, etc.. 13 Geo. I, chap. 99. ■ 2 State V. Holding, 1 McCord, 379. See also Stepliens v. Hill, 10 ilees. & AT. 28; Anon. 2 Halst. 162; Ex parte Brounsall, Cowp. 829; Rex v. Vaughn, 1 Ayils. 22. a In re , fl Barn. & Aid. 1088; Short v. Pratt, 1 Bing. 102; In re Knight, Ibid. 142. ■iStephensd. Hill, llLawJ. N. S. Ex. 329; 10 Mees. & W.2S; 1 Dowl. X. S. 669. 5 In re Niles, 5 Daly, 465. 6 Penobscot Bar v. Kimball, 64 Me. 140; Ex parte Bramhill, Goop. 829; Dick- ens' Case, 67 Pa. 169; People v. Ford, 54 111. 520; Rice v. Commonwealth, B. Mon. 484; Mill's Case, 1 Manning, Miolv. 393; In re Percy, 36 N. Y. 651; Bryant's Case, 24 N. H. 155; Burr's Case, 1 Wheel. C. L. 503; Leigh's Case, 1 Munf. 481. See Ex parte Schenck, 65 N. C. 353. 'Penobscot Bar ». Kimball, supra. 8 Dickens' Case, 67 Pa. 1()9; S. C. 5 xVm. K. 420. § 80 . SUMMARY JURISDICTION. 149 proper motives, and without just grounds, to disbar another, is misconduct for which the court has power to impose upon the moving attorney the costs and disbursements of the proceedings. ^ Obliterating a record, and antedating a writ to avoid the effect of the Statute of _^Limitations, are grounds for striking from the rolls as being unprofessional conduct and malpractice.^ So is forging the name of a person, as deputy-register, to a paper pur- porting to be a copy of an order obtained on an application as solicitor, declaring a marriage void, for the purpose of enabling the husband to impose upon the wife, and induce her to believe that she was legally divorced. For any deceit, practiced by the attorney as such, though not in a pending suit, he may be re- moved from office.^ But in the absence of professional imjjro- priety, a court is not authorized to strike an attorney from the rolls because the grounds of any motion he may make are not supported by the facts. An attorney, by his admission as such, acquires rights of which he cannot be deprived at the mere caprice of a court, any more than a physician of the practice of his profession, a mechanic of the exercise of his trade, or a mer- chant of the pursuit of his avocations.* That a counsellor joracticing in a highest State court has been stricken from the rolls of the United States District Court for the State for a contempt, does not authorize the Supreme Court of the United States to refuse his admission. The Supreme Court of the United States does not consider the circumstances upon which the order of the district judge was given as within its cognizance, or that it is authorized to punish for a contempt which may have been committed in the district court.^ For any willful breach of professional obligation on the part of an attorney, the court has the power to strike from the rolls ; and the court not only has the power, but it is its duty, when 1 Ex parte Kelly, 6^ N. Y. 198. 2 Ex parte Browri, 2 Miss. 303. 3 In re Peterson, 3 Paige, 510. * Fletcher w, Daingerfleld, 20 Cal. 430; People v. Turner, 1 Cal. 150. A record in a civil action for slander, showing that a jjlea charging an attorney with the commission of crime was found to be true, is not equivalent to showing a con- viction of the offense. (State v. Chapman, 11 Ohio, 430; Anon. 2 Dowl. O. S. 110.) 6 Ex parte Tillinghast, i Peters, 108. See People v. Hallett, 1 Colo. 352. 150 SUMMARY JURISDICTION. § 81 a jjroper case is presented, to exercise it.^ In cases where want of good character is the basis of the application, the character must be bad in such respects as shows the person unsafe and unfit to be intrusted with the powers of his profession.^ § 81. Other instances of misconduct* authorizing sus- pension or disbarring. — Among the instances of misconduct, sufficient to authorize the court to suspend the attorney from practice, or strike his name from the rolls, are the following : Wrongfully retaining and failing to pay over moneys col- lected;^ appearing for a defendant and confessing judgment without authority ;■* not paying costs of an action brought with- out being retained;*^ for deceit practiced officially, though not in a pending suit ; ^ for slanderous words not pertinent to the matter in C|uestion, uttered on trial or reference ;' commencing action without authority or consent.^ But not where notes in- stead of money have been taken by an attorney in satisfaction of Si fi. fa.;^ nor for ignorance of the law.^" Letters written by a solicitor, and published in a newsjDaper, and tending to in- fluence the result of a pending suit, have been considered a con- tempt of court. ■'^ Striking from the rolls is a personal nratter, I People r. Barker, .",1; 111. 2^9; Eiiicry / . Long, 9 East, 481; 1 Mylne & K. 98; Jackson r. French, 3 Wend. 337; C'uveney v. Tannaliill, 1 Hill, 33: Ex parte Burr, 9 Wheat. 529; Beene r. State, 22 Ark. 157; State v. Holding, 1 .McCord. 3.80; Ex parte Brownsel, Cowp. 827; Bryant's Case, 1 Fost. Ii9; Smith r. State, 1 Yerg. 228. - Baker 0. Commonwealth, 10 Bush, Ky. 592; In re Percy, 9 Tiffany, X. Y. ; Leigh's Case, 1 Mnnf. ISl; People r. Turner, 1 Cal. 190; In re Mills, 1 Mich. 3M. An order to susjiend or remove an attorney for contempt should not be made where the offense is not of so gross or serious a nature as to render him unworthy of his office. (Watson v. Savings Bank, 5 Eicli. 159 — 1873.) s People r. Smith, 3 (jaines, 221; People c. Wilson, 5 Johns. 3G8; Bohanan c. Pe- terson, 9 Wend. .503; Hynman 1 . ^^'Hshington, 2 McCord, 49."i; Ex parte Fergu- son, i; Cow. .509; 5 Paige, 311; 25 Mi.ss. 129; 7 Blackt. 421. ■•Denton v. Xoyes, G Johns. 296. s Anon. 2 Cowen, 589. <" In re Peterson, 3 Paige, 510. An attorney stricken from the rolls for false recitals in a deed, no fraud heing intended or efl'eeted, was restored on appeal. (In re Stewart, 2 Baw It. P. C 88.) , "' In re , 7 Cowen, 725. 8 In re Merritt, 5 Paige, 125. "Banks r. Cage, 1 How. (Miss.) 293. i» Bryant'sGase, 4 Fost. (N. H.) 149. II Paw V. Eley, 7 Law R. Eq. 49. As to disobedience of a rule for the pay- ment of money, see In re Ball, 8 Law R. Com. P. 104. § 81 SUMMARY JURISDICTION. 151 and therefore an attorney cannot be thus punished for the de- fault of his partner in collecting and converting the money of a client, without his knowledge or consent.^ A publication cal- culated to injure the court, and referring to it in its official character, is a sufficient cause ; but not where it is made as an editor and not as an attorney.^ Misconduct that would have prevented an attorney from be- ing admitted is usually sufficient for his suspension from prac- tice, at least for a limited period, as where an attorney, acting as clerk for a firm of attorneys, in completing the sale of certain property, ret'.eived the balance of the purchase-money, which he appropriated to his own use, by his own confession. Althougli the misconduct was not considered strictly in a professional character, yet it was such as would have prevented him from being admitted an attorney, and the court suspended him from practice for twelve months.^ Where an attorney published advertisements without any sig- nature, representing that he could procure divorces for causes not known to the law, without any publicity, and without refer- ence to the residence of the parties, and by such advertisements solicited business of that character by comnuuiication through a particular post-office box, by its number : such conduct was held a cause for striking the attorney from the rolls, as calculated to bring reproach upon the profession.* An attorney is subject to punishment for sending a letter, or threatening a prosecution, in order to extort money ;'J appearing for a party witliout authority ; •* pleading a sham plea ;' fraudu- lently altering the record ; ^ obtaining a rule or order on false, equivocal, or groundless suggestions ;^ willfully or carelessly mis- leading the opposite party, in an action or suit, as to the address iKlingeusmitli c. Kepler, il Ind. ;iil. 2 Ex parte Briggs, (i4 X. C. liOi. sin rfi Hill, 3 Law J. Q. B. ->i.i; In re Blake, 3 El. & B. 34; 30 Law J. Q. B. 32. iln re Goodrich, Til 111. 148; In re Woolley, 11 Bnsh, 95. 5 Smith V. Gillett, 3 Dowl. 3()4; Itex r. Southerton, H East, 143. See Smith v. Tower, 2 Dowl. (i73; In re Warren, 1 Har. & W. 113. 6 41 Edw. Ill, 1. 7 Pierce v. Blake, 2 Salk. 515; .leiik. 52; Blewitt v. Marsden, 10 East, 237; Mer- ington ('. Beckett, 2 Barn. & C. 81; Fortescue v. Holt, 1 Vent. 213. 8 Ex parte Brown, 1 How. (Miss.) 303. » Clarke v. (iorman, 3 Taunt. 492; Rolfe c Rogers, 4 Taunt. 191. 152 SUMMARY JURISDICTION. § 81 of the client emjsloying him ; ^ taking an unfair advantage of the opposite party in an action in the absence of his professional adviser." An attorney may be stricken from the rolls for procuring a witness to keep out of the way;^ acting in an action or suit on both sides ;'^ fraudulently obtaining possession of property under color of process, or in any way abusing the process of the court; ^ for conviction of felony or other serious crimes.'' The courts will also in lesser offenses call upon an attorney in his official capacity to answer affidavits containing charges against him as to matters intrusted to him in that capacity. '^ As a good moral character is one of the constitutional and statutory qualifications essential to tlie admission of an attorney, so he may be removed whenever he ceases to possess such qual- ification.^ It is a good reason that the attorney has accepted a challenge to fight a duel, or that he has fought a duel in a sis- ter State, and killed his antagonist. One reason may be that by the common law, independent of statute, it is murder for one to kill another in a duel.^ If an attorney obtains admission through fraud or deceit, he may be stricken from the rolls. ^^ Misconduct previous to admission has been rejected as insuf- ficient to justify an attorney being struck from the roll, on the ground that the objection should come at the time of admission. '^ 1 Neal V. Holden, 3 Dowl. 493. 2 In re Oliver, 2 Ad. & B. 629; 4 Nev. & M. 471; 1 Har. & W. 79. 3 Stephens v. Hili; 10 Mees. & W. 28; 1 Do\y1. N. S. 669. ''Masais' Case, 1 Keen, 74; Berry v. Jenkins, 3 Bing. 423. 6 2 lust. 215; Wadwortli v. Allen, 1 Chit. 186. See, as to tampering with jurors as a cause for disbarriug, Turner v. St. John, 3 Cold. 376. 6 In re King, 8 Q. B. 129; In re Bromsall, 2 Cowp. 829; Rex n. Vaughan, 1 "Wils. 22; Ex parte Frost, 1 Chit. 558; Rex v. Southerton, 6 East, 112; Anon. 1 Chit. 557; In re Howdom, 9 Dowl. 970; Anon. 1 Uowl. 174. ' In re Knight, Bing. 91; Parker v. Marshall, Lofft, 271; Auon. 22 'SVend. 656; In re Dakiu, 4 Hill, 42; Thomas i'. Roberts, 5 Dana, 189; 3 Caines, 221; 5 Johns. 368; 9 Wend. 503; 6 Johns. 296; 4 N. H. .370. 8 In re John Percy, 36 N. V. 651; In re Peterson, 3 Paige, 510; Anon. 22 AA^end. 656; People v. Palmer, 01 111. 255; AValker v. Commonwealth, 8 BushcKy.) 86; Dickinson v. Dustin, 21 Micli. 561. 9 Smith V. Tennessee, 1 Yerg. 228; State v. Fields, 1 Mart. & Y. 70. 10 Ex parte Hill, 11 Law J. N. S. Ex. 329; 10 Mees. & W. 28; 1 Dowl. N". S. U69; Anon. 2 Barn. & Adol. 766; Paget v. Chambers, 7 Scott, 610; S. C. 5 Bing. N. C. 630. 11 In re Page, 1 Bing. 160; 7 Moore, 572. § 81 SUMMARY JURISDICTION. 153 If an attorney disobeys a rule of court he is merely in con- tempt, and the proper course is to apply for an attachment against him. If he continues in contempt, the question may arise as to the propriety of his continuing any longer on the roll ; hut the court cannot at once, merely for contempt, compel him to show cause why he should not be disbarred.^ As the court may proceed in a summary way to strike an at- torney's name from the rolls for misconduct,^ it has been done in one court on the production of a copy of the report of the master in another.^ But the proofs and contents of affidavits used in one court must be stated in the other, so that the court can see that the name was struck off for misdemeanor: so the Court of Common Pleas in England refused to strike an attor- ney off the rolls on the o-round that he liad not served a regular clerkship, and had misconducted himself previously to admission, the court intimating that to support the motion a case should have been made out of misconduct subsequent to admission.** An attorney's name may be stricken from the rolls by the court in a summary proceeding, whether provided for by statute or not, as it is a duty which the court owes to the public.^ And this is done, not only as a punishment of the attorney, but as a measure necessary for the protection of the public.^ The court has power to require the attorney to purge himself upon oath of the imputed charge. '^ The name of an attorney who has fought a duel may be stricken from the roll, although no stat- ute provides for such a case, and although the attorney has not been convicted of the offense ; ^ a conviction of the crime charged is not necessary. • 1 Ex parte Townley, 3 Dowl. 40. See Ex parte Burger, 1 Dowl, N. S. 292; Ex parte Grant, 3 Dowl. 320, - Boyer v. Allen, 2 Barnes E. 42; Anon. 6 Mod. 187; Freem. Eep. 74; 2 W. Black. 991. 3 In re Smith, 4 Moore, 319; 2 Brod. & B. 522. * Ex parte Hague, 3 Brod. & B, 2.57; 7 Moore, (14; In re Page, 1 Bing. 160; 7 Moore, 572. 5 Jlill's Case, 1 Manning, 392; Peterson's Case, 3 Paige, 510; Austin's Case. 5 Eawle, 204; Burr's Case, 1 Wheel. C. C. 503; Brown's Case, 1 How. (Mi.ss.) 303; Eice V. Commonwealth, 18 B. Mon. 472. 6 Mills' Case, 1 Manning, 392; Peterson's Case, 3 Page, 510; Austin's Case, 5 Eawle, 204. 'Attorney's License, 1 Zah. 345. 8 Smith V. Tennessee, 1 Yerg. 228; Cohen v. Wright, 22 Cal. 324. 154 SUMMARY JURISDICTION. § 82 An attorney directed by the court to refund a sum of money, and who disobeys the direction and keeps out of the way, may be stricken from the rolls.i But the court will not strike from the rolls on account of an attorney's unfair play in gambling, after the relation of attorney and client between him and the applicant has ceased, the applicant having filed a bill in chancery respecting the promissory notes given by him in payment of the money won, and the matter being still pending.^ Xor for publication of a libel, where a verdict has been obtained against the attorney for one shilling damages.''^ Xor for commencing actions for the purpose of revenge.* Xor generally where the affidavits on the application amount to a charge of indictal;le offenses.^ Nor for mere non-payment of money j^ursuant to an order or rule of court, the party being merely in contempt.'' Where a solicitor, who was the only per-ion who acted profes- sionally in a trust, induced his co-trustee, who was his client, im- properly to sell out the trust fund, wdiicli was received by him and applied to his own use, on application of one of the fextnh que triiKt he was stricken from the rolls." And the same pun- ishment was inflicted on an attorney who, without authority, in- structed counsel to appear for parties interested in money in court, and to consent to its jjaymcnt out of court.^ § 82. Restoration. — If an attorne3r's name be stricken from the rolls for malpractice, he may afterward be re-admitted on motion, and on a proper showing. Striking from the rolls is not necessarily a perpetual disability ; it is sometimes meant merely as a temporary punishment, and regarded in the light of a teiupo- rary suspension only. But the applicant for re-admission in such case must satisfy the court that he ought to be restored, and that 'Anon. 10 Jnr. 198; 1 Dowl \- li.. .">2!l. 2Bx parte Stratford, T -Jur. 41'->; VI Law. .J. (J. B. 2:il. 3 Anon. 2D. P. C. 110, ••Ex parte Warren, 1 Har. & W. 113; Smith r. (Jillett, 3 D. P. C. :!il4; 3 Dowl. ( ». S. liO-t. 5 Anon, 5 Barn, & Adol. 1088, 8 Guilford I'. Sims, 13 Com. li. 370. 'In re Chandler, 22 Itc-av, 253; 2 Jur, N. S, 3i;(l; 25 Law J. Ch, ,39(1. 8 In re Collins, 7 DeG5cx, M. & O. 558, A warrant of attorney given to pre- vent proceedings on a rule for striking an attorney off the roll, is void, ( Ivir- wan (., ( ; Iman, 9 I), P, C, 330; 5 Jur. 293.) § 83 SUMMARY JURISDICTION. 155 no objection to him remains. It appears to be a matter left, to a great extent, to the sound discretion of tlie court.^ In a clear case of excess of jurisdiction, however, in an inferior court, mandamus will lie to restore an attorney's name to the roll.^ In some States an appeal will lie from an order suspending an at- torney from practice.^ If an attorney is stricken from the roll for a fraudulent mis- appropriation of moneys of a client, intrusted to him for invest- ment, it should be made a condition precedent to his being re- stored, that he should make, or should have made, full restitu- tion, or, at least, all in his power.* § 83. Practice. — The practice in the English and American courts is for the court to issue a rule upon the attorney, reciting the substance of the information or charges against him, and re- quiring him to show cause why he should not be stricken from the roll.^ The attorney must have notice and full opportunity to be heard in his defense. It is error to strike an attorney from the rolls on a mere motion, without giving him notice of the proceeding. And this is true, whether the court proceed under a statute, or in the exercise of its inherent powers.'' Specific and pertinent charges must be made and judgment entered on the process, otherwise he cannot be suspended or removed. '^ 1 Ex parte Frost, 1 ( 'hit. 558, note; Kex c. Hreemvood, 1 W. Hlack, 'I'li; 1 Johns. Cas. 181. 2 People '■. Dowling, 55 Barb. 197; S. C. "u How. Pr. :!ii4. See post, § 8i. 3 Winkelraan i\ People, r,(l 111. +lii. ^In re Poole, 4 Law It. (_'oiup. P. 350. See Wright's Case, 12 (.'mn. B. N. S. 705; Oldknow's Case, ()Best& Smith, 703; M Law J. Q B. 121; Rollins' Case, .'M Law J. (}. D. 121; Chandler's Case, 17 Beav. 475; Pyke's Case, ij P.est & Smith, 703; 34 Law ,T. . Chap- man, 11 Ohio, 430. 6 Ex parte Heyfron, 7How. (8 Miss.) 127; Saxton v. Stowell, 11 Paige Ch. 526; Beeue v. State, 22 Ark. 149; Walker p. Commonwealtli, 8 Bush (Ky.)86; Dickin- son V. Dustin, 21 Mich. 561. ' Wharton on Agency, sec. 557; Withers ''. State, 36 Ala. 2.52; State v. Start, 7 Iowa, 499; State f. Watkins, 3 Mo. 388; Beene v. State, 22 Ark. 149; Ex parte 156 SUMMARY JURISDICTION. § 83 Charges against an attorney, with a view to his suspension or removal, must be proved by a clear preponderance of evi- dence.^ The charges and accusations must be clear, specific, and cir- cumstantial, that the attorney may know how to defend. Gen- eral and vao-ue charg-es are not sufficient. A specification that an attorney " took legal papers belonging to the files of the court " is too indefinite as a charge. The time must be stated, and the title of the cause should be given. A charge so grave in its nature, and possibly leading to such serious results, must be stated with great particularity .^ Accordingly it has been held that a charge that an attorney was in the habit of encouraging the commencement and prosecution of actions for the mere pur- pose of promoting his own personal ends and interests, and stir- ring up and exciting disputes and lawsuits amongst his neighbors and the citizens of the county and neighborhood in which the party making the motion lived, is not a sufficient specification. It should state the particular case or cases in which the attor- ney has violated his duties, and the particular acts, so that the attorney may prepare his defense.'^ Full time to answer must be given the attorney,* and the ap- plication will not be granted when the charge amounts to an in- dictable offense, for attorneys cannot, more than other persons, Bryant, 24 N. H. 149; Commonwealth o. Newton, 1 Grant, 453; Fisher's Case, 6 Leigh, 619; Saxton v. Stowell, 11 Paige, 526; People?). Harvey, 41 111. 277. As to ■when attorney will not be disbarred, see Fletcher?;. Daingerfield, 20 Cal. 427; State V. Kirk, 12 Fla. 278; Perry o. State, 3 Iowa, 550; State v. Foreman, 3 Mo. 602; State v. Chapman, 11 Ohio, 430; Jackson v. State, 21 Tex. 668. 1 People V. Barker, 56 111. 299. See generally, Avhen evidence not sufficient to disbar. Walker v. State, 4 W. Va. 749; Kane v. Haywood, 66 X. C. 1; Barker's Case, 49 N. H. 195. 2 People I'. Allison, 68 111. 151; Dickinson o. Dustiu, 21 Mich. 561; Florida «. Kirke, 12 Fla. 273; Fletcher v. Daingerfield, 20 Cal. 427; Walker c. Common- ^realth, 8 Bush (Ky.) 86; Ex parte Smith, 2SInd. 47; Ex parte Brown, 2 Miss. 303. 3 Reilly v. Cavanaugh, 32 Ind. 214. In Indiana, the attorney against whom the motion to suspend is made is authorized by statute to demand that the issues formed shall be tried by a jury. The attorney may be suspended and a judg- ment rendered against him for tlie amount of money withheld by him. (Reilly V. Cavanaugh, 32 Ind. 214; Sec. 778 Code.) ■i Baily u. Jones, 1 Chit. 744; ('ass u. Nibbett, Ibid. 74.5; Denton i'. Moyes, 6 Johns. 296; 10 Paige, 352; 11 Ibid. 526; Anon. 22 Wend. 656; Leigh, 619; Ex parte Heyfron, 7 How. (Miss.) 127. It is error to strike from the rolls without some notice. (Ex parte Heyfron, svpra; In re Percy, 36 N. Y. 651; In re Peter- son,. 3 Paige, 510; Jackson v. State, 21 Tex. 668.) § 83 SUMMARY JURISDICTION. 157 be called on to criminate themselves/ but in answering the affidavits, it is not sufficient merely to deny the charges, but it is incumbent to explain the transaction to which it relates.^ A charge made against an attorney for the purpose of remov- ing him, that he is of notoriously bad character, not to be be- lieved under oath, and unworthy to practice as an attorney, is too general. But a charge that the reputation of an attorney for truth and veracity is so notoriously bad that he is not to be believed under oath, contains good cause for removal, and seems not to be too general.^ A charge that the attorney had in his hands money belonging to the party making the motion and another person, collected by him as' their attorney in a certain cause, tried in a certain court, at a term specified, mentioning the amount so collected for each, and thus withheld, which said attorney refused to pay to them on demand or in any manner account for, has been held suffi- ciently specific on demurrer. An accusation that an attorney destroyed, as far as he could, the respect due the court, by insulting language to the judge while officially occupied — that he disobeyed an official order of the court — should specify the manner in which the court was treated disrespectfully. If it was done by insulting lan- guage, the words used by the accused should be given ; if by disrespectful acts, those acts should be described, so that the ac- cused may know what words or acts he is required to defend. Such an accusation should also show what order the accused disobeyed. The finding or judgment also should specify the particular charge or charges upon which an attorney's guilt is pronounced. Where evidence against an attorney tends to establish only two or three of the charsjes aa;ainst him, and leaves the other charges without any proof, a judgment goes too far which finds him " guilty of the charges in said accusation."' * iKnight V. Hall, 1 Bing. 142; Short v. Pratt, Ibid. 102; Ilobertson i. IMills, 1 Dowl. N. S. 727; Stephens i>. Hill, Ibid. 069; 10 Mees. & W. 28; 11 Law ,1. N S. Ex. 329; Anonymous, 2 Halt. 162; Ex parte Burr, 9 Wheat. 529. 2 In re Crossley, 6 T. E. 701. sin re Mills, 1 Mich. 392; Ex parte Brownsall, Cowp. 829;Kingi'. Soutlii'rton, 6 East, 127; Smith's Case, 1 Brod. & B. 322; Leigh's Case, 1 Munf. Va. 481. * PerryV. State. 3 Greene, 550. When an attorney is charged with malpractice, or offenses not committed within the presence and personal knowledge of the 158 SUMMARY JURISDICTION. § 83 A court cannot, when rendering a judgment of suspension against an attorney, adjudge him infamous. No court can ad- judge any man, whether counsellor or layman, infamous. It is true, infamy may attach to a conviction of certain public offenses, but it is the law, and not the court, which fixes the taint. The court only pronounces the judgment which the law authorizes, and the infamy follows. But this is a very different thing from a court or judge undertaking, where no felony is charged, or indictment found, or trial had, to fix upon an officer of the court, or upon any other person, the charge of being infamous. No such power belongs to any court, or to any judge. ^ A record of conviction for a contempt of court, punished summarily, may possibly be comprehended in the single order and judgment. But where an attorney is tried for any other misconduct, it can only be done upon specific charges, and an opportunity to be heard ujjon them, so that there may be a full defense ; and an ajjpellate court can, if resorted to, determine their legal sufficiency. The judgment and hearing should be, as in other cases, upon the particular charges the attorney is called upon to answer. A mere entry upon the minutes seems not to be sufficient ; nor would such an entry be sufficient to be the basis of the impeachment of an attorney's testimony as a wit- ness, under the rule that he could only be attacked by record evidence of his conviction, even if it recited a confession on the jjart of the attorney, and thereupon his name was stricken from the rolls. ^ The courts cannot act upon a motion, and supersede the license of an attorney, except upon proof of the conviction court, the correct mode of proceeding against him is hj complaint or informa- tion made on the oath of some individual. As in other cases, specific charges must be made. (Walker i'. Commonwealth, 8 Bush, 86; Dickinson v. Dustin, 21 Mich. 561.) AVhen an attorney is guilty of malpractice within the presence and personal knowledge of the court, the judge may proceed on his own motion, and order a rule to show cause against the attorne.y. (Ibid.) All cases must be clear and free from doubt, not only as to the act charged, but as to the motive. (People V. Harvey, il 111. 277.) 1 Fletcher v. Daingerfleld, 20 Cal. 430. A judgment disbarring an attorney for contempt cannot be attacked collaterally, as in a proceeding in the nature of an information, for attempting to practice law without a license. (Smith c. State, 5 Tex. 581.) 2 Dickinson v. Dustin, 21 Mich. 561; Ex parte Bradley, 7 Wall. 364. § 83 SUMMARY JUEISDICTION. 159 of the accused by a court of competent jurisdiction, when the basis of the motion is a criminal offense. ^ Corrupt and fraudulent conduct is a sufficient ground for the suspension or removal of an attorney from office, but ignorance of the law is' not. For mistakes, the attorney may be answer- able in damages, but should not be stricken from the rolls.'^ It is the duty of the court to cause charges to be preferred against an attorney wheneyer it is satisfied, from what has oc- curred in its presence, or from any satisfactory proof, that a case exists where the public good and the ends of justice require it. If the attorney charged is an officer of the court to which the application is made, a summary jurisdiction will be exercised when he is guilty of misconduct, if he acted in the capacity of an attorney, although it did not arise in any action or suit." The proper practice, in applications to strike an attorney's name from the rolls, is to apply to the court, and support the ap- plication by affidavits setting forth, directly, positively, and spe- cifically, the misconduct complained of, and not merely the bare facts unsupported by any imputation by the party making the affidavit.* The application must be made so as to enable the party complained against to show cause, or answer the matters of the affidavits on which the appilication against him is made.^ The precise cause should appear in the order of suspension.** The name may be stricken from the roll without the interven- tion of a jury." The charge should be verified.^ The attorney must have full notice of the application by personal service.^ 1 State r. Kobinson. 26 Tex. 367. 2 Bryant's Case, 24 N. H. 149. > In re Cresswell, 1 Jur. 755; In re Peterson, 3 Paige Ch. 510; In re Knight, 1 Bing. 91. See, as to power of judge at chambers to administer this jjunisli- ment, Ex parte Higgs, 1 Dowl. 495; Wilson v. Northrop, 4 Dowl. 441; 4 Bing. N. C. 122; 5 Scott, 414. ■* In re King, 3 Nev. & M. 716. 5 Ex parte , 2 Dowl. 227. 6 State V. ^Vatkins, 3 Miss. 388. See, as to form of order and commitment. People V. Nevins, 1 Hill, 151. 7 Smith )•. State, 1 Yerg. 228. 8 Ex parte Burr, 9 AA'heat. 529. 9Ex parte Heyfron, 7 How. (Miss.) 127; Fisher's Case,G Leigh, 619. See Jones V. Miller, 1 Swan, 151; In re Peyton, 12 Kans. 398; Florida !i. Kirke, 12 Fla. 273; Fletcher w.Dalngerfleld, 20 Cal. 430; Ex parte Smith, 28 Ind. 47; Ex parte Brown, 2 Miss. 303. 160 SUMMARY JURISDICTION. § 84 Where an attorney has been suspended from one of the supe- rior courts of Westminster, in England, for misconduct, he may be suspended by other superior courts for a like period, or until the further order of the court, upon an affidavit of the fact and an affidavit of identification. Copies of papers must be fur- nished. A rule nisi is usually granted.^ When the summary jurisdiction of the court is invoked against an attorney, it does not appear to be necessary that in the morn- ing papers it should be alleged that he is an attorney of the court in which the application is made, inasmuch as all courts take judicial notice of their own officers ; ^ but the fact is often stated, and if the party be not an attorney of the court, it should dis- tinctly appear that he acted as such in the premises,^ or that he is in some way subject to the jurisdiction of the court, as by means of a previous adverse order, which has been disobeyed.* Merely acting as agent of another attorney, and receiving money, is not sufficient. § 84. Whether mandamus "will lie. — In a California case the proceedings of the lower court were irregular. The court said : " If the proceedings are void, the relators would have their action for damages, if interrupted or deprived of the priv- ileges and emoluments conferred by the license ; but this, if a remedy at all, would be too uncertain, and subject the party to great delay. We see no other remedy in such cases than that which is afforded by the writ of mandamus. Blackstone, in his Commentaries, says that this writ "maybe issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission or restitution to an office." The courts of the several States make frequent use of this writ in restoring to office incumbents who have been illegally ousted. It lies to inferior courts to restore an attorney removed by 1 In re M. T. 8 Law R. Ex. 62; In re Turner, 8 Law R. Com. P. 103: 23 and 2i Vict. chap. 127, sec. 25. 2 Ex parte Hodges, 1 Jnr. 933; People r. Kevins, 1 Hill, 154; Ex parte King, 3 Dowl. 41. See Ex parte Hare, Ibid. GOO; 1 Har. & W. 211. 8 Cole V. Grove, 1 Scott jST. S. 30; 4 Jur. 339; In re Lord, 2 Scott, 131; Thompson r. Gordon, 15 Mees. & W. ; 4 Dowl. & L. 775. See Sharp v. Hawker, 3 Scott, 396; 3 Hing. N. C. 66; Fryer v. Smith, 6 Dowl. 299. ■I Downton v. Styles, 6 Dowl. 189. § 85 SUMMARY JURISDICTION. 161 them." An alternative writ of mandamus was ordered, command- ing the judge below to cause to be vacated the order of expul- sion entered on the i-ecords, and to permit them to practice in all the courts, or show cause why the same should not be done.^ § 85. Defects in articles, etc. — Under the English system, and by statute, no person wlio has been admitted and enrolled will be liable to be struck from the rolls for or on account of any defect in the articles of clerkship, or in the registry thereof, or in his service under such articles, or in his admission and enrollment, unless the application for striking him off the rollis made with- in twelve months from the time of his admission and enroll- ment, provided the articles, registration, service, admission, or enrollment are without fraud. A motion to strike from the rolls on the ground of misconduct, and the want of regular service in his clerkship, coi\ies too late when the party has been admitted for three years and a half .^ But an attorney who has been admitted fraudulently will be struck from the rolls, and the court will grant an attachment against the parties concerned in the fraud.''^ On an affidavit imputing criminal conduct to an attorney, the form of the rule in the first instance is to show cause why he should not be struck off the roll, or be suspended from prac- tice for so long a time as the court shall think fit.* The rule must be personally served.^ The affidavit may be entitled in the cause, although judgment has been obtained in it." ' People V. Turner, 1 Cal. 190; People i\ Fletcher, 2 Scam. ISiJ; Breese, 25; 6 JIass. i62; 20 Pick. 484. As tlie admission of an attorney is a. judicial act, and not ministerial, it has been held, for that reason, that it is not the subject of mandamus. (Commonwealth c. Brackenridge, 1 Serg. & E. 187.) That manda- mus is improper, and that certiorari in the nature of a writ of error will lie where there is no appeal, see Ex parte Briggs, (3i N. C. 202; In re Randall, 11 Allen, iT-i. That appeals will lie from orders suspending attorneys, see Wink- elman v. People, 50 111. U'.i; Turner v. Commonwealth, 2 Met. (Ky.) 019. But as supporting the action of the California court, as mentioned in the text, see cmte, § 80, and cases there cited. •^ Anon. 2 Barn. & Ad. 76B; 6 and 7 Vict. chap. 73, sec. 29. 3 Ex parte Hill, 2 W. Black. 991. Striking from rolls for non-payment of stamp duty, see In re Myers, 8 Q. B. 515; 10 Jur. 563; 15 Law J. Q. B. 209. * Anon. 11 Week. R. 68; 7 L. T, N. S. 716; In re Wright, 1 Ex. 658; 5 Dowl. & L. 394; 12 Jur. 20; 17 L. T. Ex. 128. 5 Anon. 1 Car. Law Eep. 481; 23 Law J. Ex. 24. 6 Stephens v. Hill, 10 Mees. & W. 28; 1 Dowl. N. S. 669; 6 Jur. 585; Ex parte A. & C— 11. 162 SUMMARY JURISDICTION. §§ 86-7 § 86. Barratry. — There are certain offenses which properly belong to the domain of criminal law, but which will be briefly noticed here: first, because tliey sometimes concern attorneys; and second, when committed by attorneys, may, in addition to the punishment meted out by the common law or by statute, authorize the court to exercise its summary powers, and strike the attorney's name from the rolls. Reference is made to the offenses of barratry, champerty, and maintenance. Common barratry is the offense of f reqently exciting and stir- ring up suits and quarrels, either at law or otherwise. The element of frequency is essential, as a man cannot be guilty of barratry in respect of a single act.^ The indictment must charge the offender with being a " common barrator," and it has been held that at least three instances must be shown.^ The offense is a common-law misdemeanor, punishable by fine and imprison- ment, at the discretion of the court, and in case the offender be an attorney, by suspension from practice. It was enacted in England by the 12 Geo. I, chap. 29, (made perpetual by the 30 and 31 Vict., chap. 59) that if any one who has been convicted of forgery, perjury, subornation of perjury, or' common barratry, shall practice as an attorney, solicitor, or agent in any suit, the court, upon complaint, shall examine it in a summary way ; and if proved, the offender is punishable by penal servitude for a period not exceeding seven nor less than five years. § 87. Maintenance is an offense that bears a near relation to barratrj'. It is an officious intermeddling in a suit that in Caine, i Jur. 220. See, as to offenses of attorneys' clerks in England, and the mas- ter's liability therefor, Dunkley v. Ferris, 11 Com. B. 457; Matthews v. Livesley, 11 Ex. 221; 3 Car. LawEep. 898; IJur. N. S. 601; 24 Law Jur. Ex. 252; Whitfield V. Moojen, 1 Fost. & F. 290; Cornelius v. Harrison, 2 Fost- & F. 758. Practicing while in prison, see 6 and 7 Vict. chap. 14, sec. 31; In re Williams, 2S Bear. 465; 6 Jur. N. S. 908. See generally: Burton v Chesterfield, 9 Jur. 373; In re Smith, 1 El. & B. 414; 17 Jur. 114; 22 Law J. Q. B. 123; In re Collins, 18 Com. B. 272 ; In re Hall, 2 Jur. N. S. 1233 ; In re Thompson, 7 L. T. N. S. ,327 ; 13 Com. B. X. S. 288. 1 Hawk, P. C book 1, chap. 8], see. 5; 1 Hawk. P. C. 243, 244; 4 Blackst. Com. 149; Commonwealth v. Tubbs, 1 Cush. 2; Commonwealth r. JMcCulloch, 15 Ibid. 227; Commonwealth v. Davis, 11 Pick. 432; State c. Chitty, 1 Bail. 379. 2 State V. Chitty, supra; 1 Hawk. P. C. 244. § 87 SUMMARY JURISDICTION. 163 no way belongs to one, by maintaining or assisting either party with money or otherwise to prosecute or defend it.-' A man, however, may maintain the suit of his near kinsman, servant, or poor neighbor, out of charity and compassion, with impunity. Otherwise the jiunishment, by the common law, was fine and imprisonment, and by the English statute, 32 Henry VIII, chap. 9, a forfeiture of a certain amount of money. ^ The doctrine of maintenance is founded upon the principle that combinations against individuals are dangerous in them- selves and prejudicial to the public interests. It is no wrong for an individual to prosecute his rights against another in the courts, but it is criminal for others to maintain him in his suit, and for the reason that maintenance leads to oppi'cssion.^ Numerous American cases declare that assisting another with money or advice to carry on his cause is an indictable offense, unless the person thus maintaining has some interest in the sub- ject of the suit, or is connected with the suitor in some social relation.* In some States, however, maintenance is not recog- nized as an offense.® It is not maintenance, in the criminal sense of the word, if an attorney expends his own money for his client, to be repaid;® nor if a lessor pays fees or maintains the suit for his lessee in ejectment 5^^ nor if a mortgagee, not a party to, the suit, ad- Yances money to support the title ; ^ nor if an attorney take security of a stranger for past fees.^ But if the attorney of a party gives or promises any money to the jury, it is maintenance.^" 1 2 Inst. 484-564; 1 Hawk. P. C. 249, 255; 4 Blackst. Com. *149, 134, 135; 1 Rich, n, chap. 4, 321; 4 Blackst. Com. 149; Ferine v. Dunn, 3 Johns. Ch. 508; Bristol v. Dann, 12 Wend. 142. 2 1 Edw. Ill, chap. 14; 20 Ibid. chap. 14; 1 Rich. II, chap. 4. 3 Lambert?). People, 9 Cowen, 578, GOO; Lathrop v. Bank, 9 Met. (Mass.) 489, 492; Rush?). Larue, 4 Litt. 411; Thallhimer v. Brinckerhofe, 3 Cowen, 623. ^Campbell v. Jones, 4 Wend. 306; Lathrop v. Bank, 9 Met. 489; Wickham tj. Conklin, 8 Johns. 20; Cummins v. Fuller, 4 T. B. Mon. 97; Knight v. Sawin, 6 Greenl. 361 ; Godspeed v. Fuller, 46 Me. 141 ; Williamson v. Sammons, 34 Ala. 691 ; McCall V. Copehart, 20 Ala. 521. 6 As in California— Matthewson v. Fitch, 22 Cal. 86. 6 2 Inst. 484, 564; 1 Hawk. P. C. chap. 27, sees. 29. 30. '2Bol. 181. 8 Sharp V. Carter, 3 P. Wms. 375. 9 Pearson v. Humes, Cart. 230. 1013 Henry IV, 16 b. 17. 164 SUJrtMAEY JURISDICTION. § 88 The offense is now generally reached by the summary jurisdic- tion which the courts exercise over attorneys, as officers of the court, in case of malpractice. Deeds and instruments of a cham- pertous nature have been often set aside by the courts.^ § 88. Champerty (campi partitio) is a species of main- tenance, and punished usually in the same manner, being a bar- gain with a plaintiff or defendant, campum partire, to divide the land, or other matter sued for, between them, if they prevail at law ; whereupon the champertor is to carry on the party's suit at his own expense.^ It is the virtual purchasing of a suit, or right of suing. So if an attorney prosecute an action, to be paid his costs by a gross sum commensurate with his trouble, and with the benefit obtained, this is said to be champertous.^ Champerty, like maintenance, is indictable at common law. The offense consists in the unlawful maintenance of a suit in con- sideration of some bargain to have a part of the thing in dispute, or some profits out of it ; and it covers all transactions and con- tracts, whether by counsel or others, to have the whole or part of the thing, or damages recovered.* The offense may be com- mitted although no suit has actually been commenced.^ The agreement, moreover, between the client and i. , 2 Chitt. 68. 3 In re Aitkin, 4 Barn. & Aid. 47; Ex parte Hall, 7 Moore, 437; In re Chitty, 2 Dowl. O. S. 421; Ex parte Deane, 2 Ibid, 533; Ex parte Covvie, 3 Ibid. 600; Ex parte Cohen, 1 Har, & W. 211. ^Thwaites v. Koe, 3 Dowl. & K. 226, 6 Ex parte Sharp, 5 Dowl. O, S, 717; Ex parte Yeatman, 4 Ibid, 304: 1 Har. & W. 510. See Moulton v. Bennett, 18 Wend. 586. 6 Ex parte Shlpden, 6 Dowl, & R, 338, See generally : Ty.'ion v. Ironmonger, 1 Wils, 30; Bailey v. Jones, 1 Chit. 744; Evans v. P. 2 Wils. 282; Gwelliam v. Bar- net, 2 Smith, 155. § 94 SUMMARY JURISDICTION. 175 upon a debt against him. The judgment was afterward re- versed, but the court held that the attorney was not liable in an action or otherwise for the money, although the client was. There the title to the money vested in the client, and the attor- ney had discharged his duty and was not in fault. But where the money never lawfully passed, and the order by which it was obtained had been procured by the fraud of the attorney, he could not make any disposition of it which would shield him from the consequences of the act. This would be so as to any person, and the summary jurisdiction of the court, exercised over its own officers to secure good faith in their deal- ings with the public, renders the rule peculiarly applicable to an attorney. Where an attorney obtains money from a third party under an order of the court, which would not have been granted had he not suppressed certain material facts, an attach- ment will issue against him. The sup2)ression of such facts amounts to a fraud upon the court.^ The court will not order an attorney to pay over a sum of money received by him in his character of attorney, except upon the application of the client to whom the monej- is due.^ Where an attorney has been employed to prepare mortgage deeds and he receives the money raised by the mortgage, he may be called upon summarily to account for it.'' But the court will not compel an attorney to pay over money, the right to which is dependent on the existence of a special agreement between cli- ent and attorney, and which the latter disputes ; *• nor where the payment has been the result of an agreement ; nor to pay over money received as attorney, he having afterward become bank- rupt and obtained his certificate,^ unless fraud is shown.'' The 1 Wilmerdings I'. Fowler, 45 How. Pr. 142; S. C. 14 Abb. Pr. N". S. 249. 2 In re Fenton, 5 Nev. & M. 239; 3 Ad. & B. 404; 1 Har. & ^Y. 310. s Ex parte Cripwell, 5 D. P. C. 689; W. \Y. & D. 356; 1 Jur. 755. 4 Hodson V. Terrall, 2 T>. P. C. 264. 6 Ex parte Culliford, 8 Barn. & C. 220; Baron w, Martell, 9 Dowl. & R. 390; Rex V. Edwards, 9 Barn. & C. 652; In re Newberry, 4 Ad. & B. 100; 5 Nev. & M. 419; 1 Har. & W. 375. 6 In re Bonner, 1 Nev. & M. 555; 4 Barn. & Adol. 811. It is misconduct in any attorney to charge and receive more fees for any service rendered than the statute allows. If the attorney is to be regarded as receiving his fees officially, his act in receiving illegal ones is one of official misconduct ; and because attor- neys are regarded as officers of the court, the courts have been in the habit of 176 SUMMARY JURISDICTION. § 94 court will not summarily compel an attorney to refund to his client costs unnecessarily incurred unless he has been guilty of gross negligence, nor unless the client has first paid them to the attorney.-' When professional character is the ground of the employment, it is not essential to the exercise of this power that he should have been employed or instructed to commence legal proceed- ings. It is enough that the money was received by him in his character of attorney ; as where a demand is left with him, with instructions to call for payment, or obtain better security, but without any directions to sue.^ The employment in a profes- sional capacity is sometimes inferred. Thus, where an attorney received money under a power which described him as a coun- sellor and attorney, the court said it was manifest that the em- ployers contemplated the party's professional character.-^ So, where a bond was left with an attorney, to the end that he should write to the obligor and obtain the money, but without any ex- press direction to bring a suit, in default of payment, the attor- ney, having received the money without suit, and neglected to pay it over, on demand, to his client, the court held that he re- ceived the bond in his character of attorney, and granted a rule against him to show cause why an attachment should not issue for not paying it over.* But where the presumption as to the attorney's acting in a professional character cannot be indulged in, or where it is clear he did not so act, the summarv jurisdic- tion will not be exercised.^ granting relief against tliem by summary motion, treating tlie act as one of offi- cial misconduct in an officer of the court, and therefore to he redressed in a summary manner, (Merritt ti, Lambert, 10 Paige, 356; Wallis v. Loubat, 2 Denio, 607; Waters ?'. Whittemoi-e, 22 Barb. 593.) iMeggs V. Blnns, 2 Bing. N. G. 625; 3 Scott, 52; 2 Hodges, 10; Dickenson i. Jacobs, 10 Week. E. 30:!; 5 L. T. X. S. 757; Layton r. Wood, 3 Jur. 12i; Ex parte Wood, 12 '\\'eek. E. 136; 9 L, T. N. S. 420. See generally; In re Ford, 8 D. P. C. 68i; In re Morris, 2 Ad. & E. 582; In re Cardross, 7 D. P. C. 86l': 5 Mees. & W. 545; Ex parte Faith, U I>. P. C. 973; 5 Jur. 653; Xasli>. Goode, 9 D. P. C. 929; Anon. 11 Jur. :f9B; Tliarratt v. Trevor, 7 Ex. 161; 21 Law J. Ex. 69. 2 In re Dakin, 4 Hill, 44. 3 De Woolf e c. , 2 Chit. 08; In re Dakin, supi-a ; Ex parte Creswell, 5 Dowl. O. S. 689; In re Cretwell r. Fosbrooke, 1 London Jurist, 755. * Ex parte Staats, 4 Cowcn, 70. 6 Ex parte Schwalbanker, 1 Dowl. O. S. 182; Ex parte Faith, 9 Dowl. O. S. 973; 5 London Jurist, 751; In re Dakin, 4 Hill, 42; Ex parte Deane, 2 Dowl. O. S. 533. § 94 SUMMARY JURISDICTION. 177 For neglecting or refusing to pay over money collected for the client, a rule will be granted to show cause why an attach- ment should not issue.' But he cannot be proceeded against in this way, nor by action to recover the money, until after demand or order to remit, although the attorney may have expressed his intention to keep the money, upon a claim of indemnity on the part of his client growing out of some other matter, unless such intention or declaration came to the knowledge of the client or his agent before action brought or proceedings commenced.^ If the client choose to commence an action against the attorney, he must first discontinue it, before he can invoke the summary jurisdiction of the covirt.^ Neither can the summary jurisdic- tion be invoked, if the client takes a note for the amount, thus merging; the relation of attorney and client into that of debtor and creditor.* A charge that the attorney had in his hands money belonging to the party making the motion and another person, collected by him as their attorney, in a certain case tried in the same, court, at a term specified, mentioning the amount so collected for each and thus withheld, which said attorney refused to pay them on demand, or in any manner account for, is a sufficient specification of facts.^ On a charge against an attorney for re- fusing to jDay over money collected by him, it ajDpeared that the money had long before been paid to the party entitled, who made no complaint, and there was a dispute as' to the attorney's fee. It was held that if the party to whom the money belonged made no complaint it was no concern of "the relative, who was a stranger. Besides, seven years had elapsed since the alleged misconduct. The delay was fatal. The law does not favor in- formations against attorneys at law, after the lapse of a great length of time. The party whose rights are injuriously affected 1 People V. Wilson, 5 Johns. 368;'In re Dakin, i Hill, 42; Calliford v. Warren, 8Barn.&C.220; Rexv. Edwards, 9 Ibid. 652; Matter of Bonner, 1 Nev. &M. 555; 4 Barn. & Add. 811. '^ Ex parte Ferguson, 6 Cowen, 598; Taylor v. Bates, 5 Cowen, 376; Lillie r. Hoyt, 5 Hill, 395; Eathbun ». Ingalls, 7 Wend. 320. 3 Anon. 5 London Jurist, 678. But see Ex parte A. B. 4 Ibid. 630. * Bolianan v. Peterson, 9 Wend. 503. 6 Eeilly c. Cavanaugh, :>2 Ind. 214. A. & C— 12. 178 SUMMARY JURISDICTION. § 95 by conduct of the character alleged, ought to be required to ex- hibit his information within a reasonable time, that the attorney implicated may be afforded an opportunity to make his defense while testimony for that purpose can be had.^ The court will not interfere summarily when there is a hona fide dispute which is a question for a jury ; as, where the right is dependent on the evidence of a special agreement between the client and the at- torney, which is disputed.^ § 95. Imposing costs. — The courts have summarily intlicted costs on attorneys in cases of positive fraud and malpractice, and sometimes in cases of gross carelessness or negligence. Costs have been imposed on attorneys for pleading a sham plea, though instructed by the client to do so ; ^ drawing papers with unnecessary prolixity:* proceeding on behalf of fictitious parties or persons who liave absconded;^ inserting immaterial, irrele- vant, or scandalous matter in the pleadings ; ^ making obviously unnecessary applications to the court, or in any way causing ex- pense clearly unnecessary.' Imposing costs in conducting suits in equity. — In equity, as well as in law, solicitors, guilty of gross neglect, fraud, or other mis- 1 People V. Allison, 08 111. 151. "Where au attorney obtained a sum of money from a person, on his representation that the latter had title to a certain tract of land, which, the attorney stated, was in a high state of cultivation, had val- uable improvements ijpon it, and wa.s worth .^15,000 ; and representing that the money was required to refund taxes which had been paid by the party in ad- verse possession, before suit could be commenced, and afterward tried to get more, representing that he had commenced suit for the land, and that a larger amount of taxes had been paid than he supposed — all the representations being false — his name was stricken from the roll. (People c. Ford, 54 111. 520. See In re Brown, 2 Col. T. 553.) An indiciment against an attorney, for collecting and receiving, in the capacitj' of attorney at law, money belonging to the prosecutor, and neglecting to pay the same to him after demanded, etc., but not distinctly averring that the relation of attorney and client existed between the defendant and prosecutor, is insufficient. (People r. Tryon, 4 Jlich. 0G5. ) ZHodsonc. Terrall, 2 Dowl. O. S. 2(:4; Beal c. Langstaff, 2 Wils. K71. 8 Blewit c. Marsden, 10 East, 237; Vincent r. Grodiece, 1 Chit. 1.S2. ■1 Ex parte Smith, 1 Atk. 139. o Hoskins v. Phillips, IC Law J. Q. B. 339; American Insurance Co. r. Oakley, 9 Paige, 496; Glyn v. Kirby, 1 Str. 402; Hall v. Bennett, 2 Sira. & St. 78; AVrigiit V. Castle, 3 Mer. 12. !> Ex parte Simjison, 15 Vcs. Jr. 476; Powell r. Kane, 5 Paige, 265; Sommers v. Torrey, Ibid. 54; Cushman r. Brown, 6 Paige, 539. ~ Rolfe r. Rogers, 4 Taunt. 191; Blundellr. Blundell, 1 Uowl. & R. 142: 5 Barn. & Aid. 533; Clarke c. Gorman, 3 Taunt. 492; Adlington c. Appleton, 2 Camp. 410, § 96 SUMMARY JURISDICTION. 179 conduct, will be ordered to pay costs. ^ An order may also be made upon the attorney to show cause why he should not be stricken from the roll if the offense is of sufficient gravity. Where an affidavit contained scandalous and irrelevant matter, Lord El- don ordered the solicitor who made the affidavit to pay the costs of the application, and all other costs ; and, after payment, the affi- davit to be removed from the files.^ Where affidavits were sworn to before a solicitor in the cause, the court compelled him to pay the costs, and dismissed the petition of which they were the basis.^ And where a solicitor filed a bill after the plaintiff had absconded, and without any instructions from him, but with the instructions of the plaintiff's brother-in-law, and the suit was dismissed for want of prosecution, the solicitor was ordered by the court to pay the costs.* § 96. Ans-wering matters of afiBdavits. — The court will not grant a rule calling upon an attorney to answer the matters of an affidavit, nor compel an answer where, if the facts sug- gested exist, they might be the foundation of an indictment.'^ When an attorney does not appear to show cause against a rule calling on him to answer the matters of an affidavit, the court will make the rule absolute to answer within a certain time, and, in default, that an attachment issue against him, and also that he be struck off the roll.^ In the case of indictable offenses, the court will not grant a rule calling on an attorney to answer the matters of an affidavit, but will grant a rule nisi, calling on him to show cause why he should not be struck off the roll of the court." t ' Floyd V. Nangle, 3 Atk. 368; Fawkes v. Pratt, 1 P. Wms. 593; Ex parte Con- way, 13. Yes. 62i Ex parte Heywood, Ibid. 67; Ex parte Cuthbert, 1 Madd. 78; Bx parte Houghton, 1 Glyn & J. 14; Dungey r. Angove, 2 Ves. Jr. 304. 2 2 Turn & Yen. Pr. Ch. 2; 15 Ves. 476; 18 Ibid. 114; 3 Yes. & B. 93. 3 In re Logan, 3 Atk. 813. 4 Hall V. Bennett, 2 Sim. & St. 78. 5 Robertsons. Mills, 1 Dowl. N. S. 772; 6 Jur. 896. See also Belcher !■. Godered, 4 Com. B. 472; Haigh v. Jones, 1 Dowl. & L. 81; 6 Scott N. R. 696; 5 M. & G. 634; In re Eyre, 1 Com. B. N. S. 151; Meux v. Lloyd, 2 Ibid. 409; In re Holmes, 12 Jur. 657. 6 In re Worman. 1 Hurl. & C. 636; 32 Law ,J. Ex. 83; 11 Week. R. 26; 7 L. T. N. S. 249. ■ Anon. 12 Week. R. 311. See Anon. 12 Week. R. 1012. It has been held in England that the court would not interfere in a summary when the miscon- 180 SUMMARY JURISDICTION. § 97 § 97. Attachments against attorneys — Contempts. — If an attorney misconduct himself in his profession, he is, in many cases, liable to an attachment. Attachments against them are also moved for in cases of unfair dealings toward their clients, as for delaying suits, putting the parties to unnecessary expense, demanding fees for business not performed, refusing to surren- der papers, or money recovered and received for clients. A rule to show cause or deliver up is generally first made.' But the money or writings must be received in the capacity of attorney, otherwise the party will be left to his ordinary remedy by action.^ Attachments are granted in all cases of contempts, as if an attorney disobey an order of court, after being personally served with such order. It has been held a contempt of court to assign the death of a plaintiff in ejectment for error ;^ or to bring a fie. titiours action ; * or to serve process on one pursuing his business in court; '5 or to refuse answering questions by the court ;8 or to undertake to appear, and then not appear ; "' or to let an argument go on to get an opinion of the court, after the parties have pri- vately agreed.'^ In cases of contempt, the specific offense charged duct complained of amounted to an indictable offense, on the ground that the attorney should not be called upon to answer criminatory matter, as his answer might be afterward evidence against him in case of indictment. (Matter of , 5 Barn. & Adol. 1088; In re Knight v. Hall, 1 Bing. 142; Short e. Pratt, 1 Bing. 102; 7 Moore, 424; Anon. 2 Dowl. O. S. 110; 2 London Jurist, 467; 12 Law J. Q. B. 331; In re , 3 Xev. & P. 389; Ex parte Jones, 2 Dowl. O. S. 161; Robertson v. Mills, 6 London Jurist, 89B; 1 Dowl. N. S. 772.) But the rule has been restricted to cases where the attorney, according to the English practice, is called upon to answer matters of affidavit ; arid in cases of professional misconduct in the course of an action, the courts have called upon the attorney to show cause why his name should not be stricken from the roll, even though the matters complained of amounted to an indictable offense, and yet would not compel him to answer the affidavit charging the offense. (Stevens V. Hill, 10 Mees. & W. 28; 1 Dowl. IST. S. 669; 6 Loudon Jurist, 585.) But in cases of misconduct or malpractice not amounting to an indictable of- fense, courts have compelled the attorney to answer the affidavit charging the same. (Evans v. , 2 Wils. 382; o Dowl &. R. 602.) 1 Hawk. P. C. chap. 22, sec. 10; Coye's Case, Style, 129; Fernald v. Ladd, 4 N. H. 370; Gruggen v. White, 4 Taunt. 881. 2 Ibid. 3 Strange, 890. •"Cox B. Phillips, Cas. t. Hardw. 237; 8 Mod. 109. 5 Andrew,- 275; Strange, 1094. estrange, 1197; ^^■ils. 30. ;Cas. t. Hardw. 131; Com. Dig. Attorney, B. 13, 15. 8 Strange, 420. § 97 SUMMARY JUKISDICTION. 181 should be distinctly stated, and an opportunity given of answer- ing.i Language may be contemptuous, whether written or spoken ; and if in the pi'esence of the court, notice is not essential before punishment ; and scandalous and insulting matter in a petition for reheai'ing is equivalent to the commission in open court of an act constituting a contempt. Where the language is capable of explanation, and is explained, the proceedings must be discon- tinued ; but where it is offensive and insulting per se, the dis- avowal of an intention to commit a contempt may tend to excuse, but cannot justify, the act. For an open, notorious, and public insult to a court, for which an attorney contumaciously refused in any way to atone, he was fined for contempt, and his authority to practice revoked.^ The publication by an attorney of an article in a newspaper criticizing the rulings of the court in a cause tried and determ- ined prior to the publication, does not constitute contemptuous or violent behavior, punishable by contempt. If made during the trial, it would present a different question.^ It has also been held a contempt of court to alter the name in a sheriff's warrant,* or to sign a counsel's name to a bill in equity without his consent,^ and to refuse to prove the execution of a deed to which the attorney is a subscribing witness,^ to swear to an incredible story in an affidavit.^ But in those cases where there has been mere negligence on the part of the attorney, or where the damages which the in- jured party has sustained are proper for a jury to pass upon, or where no fraud has been practiced, the court will not generally interfere on motion, but will leave the parties to their remedy by action.^ An attachment was therefore refused against an at- 1 In re Pollard, 2 Law R. P. C. lOS. 2 In re "Woolley, 11 Bush, 95; Ex parte Secombe, 19 How. 13; In re Cliarlton, 2 Mylne & C. 317; People v. Freer, 1 Gaines, 484; Watson ij. Bank, 5 Ricli. 159; Hirst V. Ingersoll, 9 Phila. 216. 3 State ti. Anderson, 40 Iowa, 207. 4 1 W. Black. 2. SFawcett »). Garford, Trin. 29 Geo. III. sCowp. 845. 'In re Crossley, 6 Durn. & E. 701; In re Elsam, 3 Barn. & C. 597; 5 Dowl. & R. 389. 8 Ex parte Brooks, 1 Bing. 105; In re Jones, 1 Chit. 651; Barker v. Butler, 2 W. Black. 780: Anon. Lofft, 545. 182 SUMMARY JURISDICTION. § 97 torney appearing without warrant, because the defendant, if in- jured by such appearance, might have his remedy by action ; ^ so for an attorney acting without being duly sworn, because he was liable to a penalty.^ Contempt of the jurisdiction of the court, default in obeying a rule of court, or in answering an affidavit imputing miscon- duct, subject an attorney to fine and attachment, as improperly altering pleadings, inserting scandalous matter in them, exercis- ing extortion, fraud, or malpractice, bringing a fictitious action,^ suffering an unqualified person to use the attorney's name in le- gal proceedings, yet in such a way as not to subject him to sus- pension from practice ; * and in a case where an attorney, without any unworthy motive, jarepared a special case to get the opinion of the court upon a will, and made suggestions which had no foundation in fact, the court considered him guilty of contempt.^ Where an attorney was retained to defend an action, and al- lowed judgment to go by default, and afterward desired his cli- ent not to attend to endeavor to mitigate the damao-es, because the proceedings might be set aside for irregularity, when in fact they could not, and finally execution was sued out, and the cli- ent 2)aid the sum claimed and costs — it was held that the client's only remedy against the attorney was by action,^ and a court has refused to proceed summarily against an attorney on an affidavit containing a charge of conspiracy, or other indictable offense, but will leave the party to proceed by indictment." A court has refused to grant an attachment ao-ainst an attor- ney for bringing, contrary to agreement, a writ of error, where it was shown that it was not done for delay, and the attorney was led into a mistake.* An attachment will not be granted against an attornev for an ^Anon. Comb. 2; 6 Mod. 16; 5 Mod. 205. ■^Hounsloww. Roberts, 1 Barnes, 18. 3 Lord Hard. Cases, 237; Williams v. Douglas, 5 Bear. 83; Farrell's Case, An- drew, 278. •• Ex parte Wliatton, 5 Barn. \' Aid. 821; Starr i\ Vanderhej'den, 9 Johns. Ch. 253; Phelps o. Overton, 4 Hayw. (Teun.)2y2; Rose v. Mynatt, 7 Yerg. 30; IS ^Yend. 586; 3 Paige, 510; 5 Paige, 62. 6 In re Elsam, 3 Barn. & C. 5117. 6 In re Jones, 1 Chit. 651, 186. ' Short V. I'ratt, 1 Bing. 102; Knight v. Hall, 1 Biug. 112. s Camden v. Edee, 1 H. Black. 21. § 97 SUMMARY JURISDICTION. 183 error of judgment, nor for compromising an action without the consent of the principal, nor for neglecting to enter an appear- ance for a defendant in [lursuance of his undertaking, nor where the undertaking had been written by the attorney, but never signed, nor generally in cases wliore statutory penalties are pro- vided for the client in the event of the attorney's misconduct, but the parties will be left to sue for the penalty.^ LiitbUlty to attachment. — An attorney not entering an appear- ance in pursuance of his undertaking is liable to an attachment.^ And where money has been wrongfully detained by an attorney from his client, and a rule requiring him to pay that money over has been made absolute against him, the court will grant a rule for an attachment absolute in the first instance, he not having comjjlied Avith the rule.^ An attachment may be issued to com- pel an attorney to deliver up papers to a client.* Where an attorney is in contempt for disobeying a rule, the proper practice is to move for an attachment, and not to apply to have him stricken from the roUs.^ Demand to deliver papers should be made before api)lying for the attachment, and the per- son making the demand must be authorized to do so, and state that fact to the attorney.'' Personal service of the attachment should be made.' The attachment. — In England, the attachment is regarded as being in the nature of a a criminal process, directed to the sheriff, commanding him to attach the party, so that he may have him before the king, or his justices at Westminster, on a certain day, to " answer of and concerning those things which shall there on his majesty's behalf be objected against him." The party being 1 Harrington v. Jennings, Lofft, 188; Anon. Lofft, 433, 192; Mould f. Roberts, 4 Dowl. & E. 71ii; Camden i\ Edie, supra; Hounslow c. Roberts, 1 Barnes, IS; Matthews r. Royle, 6 Moore, 70; Ex parte Flint, 2 Dowl. & R. 40B, 2 Reg. f!en. Q. B. C. P. E.\-. H. T. IB Vict. 2, 3; 1 El, & B. App. 3; Jacob v. Magnay, 12 Law J. Q. B. 93; 7 Jur. 32ti. 3 Ex parte Burgin, 1 Dowl. N. S. 293; Ex parte Brightmore, B Jtx. 15. 4 Ex parte Willand, 11 Cum. B. .544. See, where attachment has been refused, Reg V. Carttar, 1 Lown. M. & P. 388; 19 Law J. (^ B. 422; Poole v. Watkius, 4 D. P. C. 11; Ex parte Lawrence, 2 Ibid. 2.30. 5 Ex parte Towuley, 3 D. P. C. 3i); Ex parte Grant, 3 Ibid. 320. Hickman v. Hickman, 8 D. P. C. 833. 7 Anon. 1 Dowl. & R. .529; Short v. Smith, 1 Man. & G. 211; 8 D. P. C. 584; 1 Scott N. R. 153; In re Holiday, 9 D. P. C. 1020; 5 Jur. 532. See, generally, Stev- enson V. Power, 9 Price, 384; Anon. 10 Jur. 198. 184 SUMMARY JURISDICTION. § 97 taken on this writ either remains in custody, or puts in bail be- fore the court or judge, for it has been doubted whether he is bailable by the sheriif, to answer interrogatories, and to appear from day to day till the court shall determine concerning the matters objected against him. i A rule for an attachment is the ordinary remedy in case of non-payment of money, directed by the court to be paid over, and for not delivering up papers ; ^ but generally it cannot be re- sorted to for mere error of judgment on an attorney's part, or for his acting contrary to the client's instructions, or for being guilty of negligence, as these matters are properly the subjects of action.^ If a contempt be committed by a person present in court, and it appear, either from the confession of the party in his examination upon oath, or by the view or immediate observa- tion of the judges themselves, the court may immediately record the crime and commit the offender, and also inflict such further punishment as it deems proper.^ Practice. — To invoke the summary remedy of attachment, the act complained of must be the personal act of the attorney, or violation of his personal duty.* ' For disobedience to an or- der, the motion for attachment should be made in the court in which the previous proceeding took place, and be supported by proof of service of the previous order, and a demand and refu- sal to perform the act required. Personal service is usually ne- cessary.^ Every preliminary should have been complied with to make the right of the applicant complete.^ Although usually where an attachment is moved for non-performance of an order 1 Stevenson v. Power, 9 Price, 384; Saxton v. Stowell, 11 Paige, 526; Anou. 22 "Wend. 656; Gruggen v. Wliite, 4 Taunt. 881; Stone v. Stone, Ibid. 601. 2 Harrington v. Jennings, Lofft, 188; Anon. Ibid. 433, 545; Parker e. Butler, 2 W. Black, 780; Evans v. Watrous, 2 Port. 205; "Wilson v. Buss. 7 Shep. 421; 21 Ala. 647; 10 Serg. & E. 368. 3 2 Hawk. P. C. chap. 22, sec. 1. * Poole V. Watkins, 4 Dowl. 11 ; Ex parte Townley, 3 Dowl. 39; Ex parte Grant, 3Dowl. 320; Short v. Smitli, 1 Man. & G. 211. 6 Poole V. Watkins, supra ; v. Barton, 2 Chit. 66. s See, as to practice in attachment in summary proceedings, Mangin v. Cheeney, 1 Hill, 145; Thomas v. Cummins, 1 Yates, 1; Respub. !•. Oswald, 1 Dall. 328; Watts D. Robertson, 4 Hem. & M. 442; Helling worth v. Duane, Wall. 141; People !). Tefft, 3 Cowen, 340; Morris i\ Marcy, 4 Ham, 83; Matter of Ferguson, 6 Cowen, 569; Ex parte Staats. 4 Cowen, 76; Ex parte Ketchum, 4 Hill, 564; People v. Kevins, 1 Hill, 154; Howland c. Ralph, 3 Johns. 20. § 98 SUMMARY JURISDICTION. 185 of the court, in all cases, except for non-payment of costs, it is pursuant to a rule to show cause ; still, where the attorney has had full opportunity to show cause in previous proceedings, the rule for the attachment may be absolute in the first instance. ^ And so, when the order disobeyed contained a clause authorizing the issue of an attachment in case of disobedience ; ^ but the courts do not generally grant the first rule in the alternative ; ^ as, that the attorney do the act required, or, in default, why an attachment should not issue. The aflEidavit on which the motion for an attachment is made should depose to personal service of the previous rule or order.* When one is arrested on an attachment for not obeying a judge's order, he cannot purge his contempt or be discharged, unless his compliance with the order be complete and hona fide. So, where an attorney was so arrested, for not obeying an order directing him to deliver his bill of costs, and also an account of all moneys received by him on account of his client, and he prayed to be discharged out of custody on the delivery of a bill and cash account, verified only by his clerk, who swore that the account gave credit for all sums received, as he was informed and believed, (no affidavit verifying the account being made by the defendant himself) the court refused to discharge the de- fendant immediately out of custody ; but directed his bill of costs and account to be referred, with directions to report on what terms the defendant should be discharged.^ The defend- ant, it was said, should himself have sworn to the accuracy of the accounts, that they were full and accurate, and that he had given credit for all moneys received. § 98. Contempts in the United States Courts. — The seventeenth section of the United States Judiciary Act of 1789 provides ^ that all the courts of the United States " shall have ^ Chaunt. ?;. Smart, 1 Bos. & P. 477; King v. Price, 1 Price, 341; Stevenson v. Power, 9 Price, 384; Ex parte Burgin, IDowl. N. S. 292; Ex parte Brightmore, 6 London Jurist, 15. 2 Ex parte Grant, 3 Dowl. P. C. 320. 3 Eoscoe V. Hardman, 5 Dowl. 157. 4 Anon. 2 Chit. 66. « Eeg. V. Weston, 8 Jur. 1122. « 1 Stats, at L. 83. 186 SUMMARY JUKISDICTIOlSi. § 98 power * * to punish by fine or imprisonment, at the discre- tion of said courts, all contempts of authority in any cause or hearing before the same." An Act of March 2nd, 1831, entitled "An Act declaratory of the law concerning contempts of court," provides in its first sec- tion " that the power of the several courts of the United States to issue attachments and inflict summary punishment for con- tempts of court, shall not he construed to extend to any cases, except the misbehavior of any person or persons in the pres- ence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts, in their official transaptions, and the disobe- dience or resistance, by any officer of the said courts, party, juror, witness, or any other person or jjersons, to any lawful writ, process, order, rule, decree, or command of the said courts." In Ex parte Robinson,^ in the Supreme Court of the United States, Justice Field, in delivering the opinion of the court, said : '■' The power to punish for contempts is inherent in all courts ; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administra- tion of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power. But the power has been limited and defined by the Act of Congress of March 2nd, 1831. The act, in terms, applies to all courts. Whether it can be held to limit the authority of the Supreme ■ Court, which derives its existence and powers from the Consti- tution, may perhaps be a matter of doubt. But that it applies to the circuit and district courts, there can be no question. These courts were created by acts of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The Act of 1831 is therefore, to them, the law specifying the cases in which summary punishment for contempts may be inflicted. It limits the power of these courts in this respect to three classes of cases. 1st. Where there has been misbehavior of a person 1 10 Wall. 505. § 99 SUMMARY JURISDICTION. 187 in the presence of the courts, or so near thereto as to obstruct the administration of justice. 2nd. Where there has been mis- behavior of any officer of the courts in his official transactions. 3rd. Where there has been disobedience or resistance by any officer, party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the courts. As thus seen, the power of these courts, in the punishments of con- tempts, can only be exercised to insure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments, and processes." The Act of 1789, only authorizing a contempt to be punished by fine or imprisonment, an attempt on the part of a district or circuit judge of the United States to punish a contempt by disbarring or suspension, is unauthorized and void. The enact- ment is a limitation upon the manner in which the jDOwer shall be exercised, and is a negation of all other modes of punishment ; and a judgment disbarring an attorney, treated as a punishment for a contempt, is unauthorized and void.^ § 99. Miscellaneous offenses. — Attorneys have been ad- judged guilty of contempt for preparing a special case hav- ing no foundation in fact, for the purpose of getting the opin- ion of the court on such a state of facts, and this where there was no corrupt or otherwise unworthy motive.^ It is a high misdemeanor for an attorney to compromise a criminal charge, and may subject the attorney to fine or suspension, or both, as where the attorney was instrumental in letting one charged with forgery out of the custody of the officers of the law ; ^ the same punishment will be inflicted in cases of palpable fraud.* Where an attorney has been suspended for a term of years by one court, it is not compulsory on other courts of co-ordinate jurisdiction, as in the case of striking from the rolls, to suspend him ; but they will look into the affidavits and exercise their own iJSx parte Robinson, 19 Wall. 505. 2 In re Elsam, 5 Dowl. & R. 389; 3 Barn. & C. 597. 3 Rex V. Vaughan, 1 Wils. 221. J In re Blake, 3 El. & E. 34; 6 Jur. N. S. 1242; 2 L. T. N. S. 429; 30 Law J. Q. B. 32. 188 SUMMARY JURISDICTION. § 100 discretion.! "Where serious charges of misconduct are brought before the court of which he is a member, the court will not permit any private arrangement of it to be made between the parties, but will require that such misconduct be fully explained to the satisfaction of the court.^ § 100. Summary jurisdiction under statutes in Eng- land.— By the 23 and 24 Vict., chap. 127, sec. 24, (Act of 1860) it was enacted that where the name of an attorney or so- licitor should be ordered to be struck off the roll of attorneys or solicitors of any court, on his own application, or on the ap- plication of any other person, the rule or order for that purpose should forthwith, and before being acted upon, be produced to the registrar of attorneys and solicitors, who was required to enter a note or minute of the rule or order in connection with the name of such attorney or solicitor on the roll of attorneys and solicitors kept by the registrar, and to strike the name off the roll, and to mark the rule or order as having been entered. By a later statute, 37 and 38 Vict., chap. 81, it was enacted that where application is intended to be made to any court for an order or rule to strike the name of any attorney or solicitor (not being the attorney or solicitor making the application) off the roll, or for an order or rule to compel him to answer the matters of an affidavit, notice in writing must be given to the registrar of such intended application fourteen clear days at the least before such application is made. Copies of all affidavits intended to be used in support of such application shall be deliv- ered to the registrar with the notice. The court shall not entertain any such application except upon production of an affidavit proving that the notice required by this act has been duly given, and that copies of all such affida- vits have been duly delivered to the registrar. The registrar may appear by counsel upon the hearing of any such applica- tion, and upon any other proceedings arising out of or in ref- erence to the application, and may apply to the court to make absolute any rule nisi which may have been granted by the 1 In re De Medina, 10 Week. E. 627; 6 L. T. N. S. 536. 2 Anon. 9 L. T. N. S. 299. § 101 SUMMARY JURISDICTION. 189 court in the matter of such application ; or to make an order that the name of the attorney or solicitor be struck oif the rolls, or, as the case may be, to order him to answer the matters of the affidavit, or such other order as to the court may seem fit ; and the court may order the costs, charges, and expenses of the reg- istrar, of or relating to any of the said matters, to be paid by the attorney or solicitor against whom the application is made or was intended to be made, or by the person by or on whose behalf the application is made or was intended to be made, or partly by one and partly by the other of them.^ The name of every person struck off the roll of attorneys of the superior courts shall, upon production of an ofiice copy of the rule or order, and an affidavit of the identity of the person named, to the proper officer of any other court of which such pei'son is an attorney or solicitor, be struck off the roll of such other court, and the same provisions are made, mutatis mutandis, in case of restoration to the roll.^ Every person who acts as an attorney or solicitor contrary to the enactments of the statutes, or who, in his own name, or in the name of any other person, acts without being qualified, is guilty of a contempt of court, and may be punished accordingly, and shall be incapable of maintaining any action or suit for any fee or reward for or in respect of anything done, or any dis- bursement made, by him in the course of so acting, and shall, in addition to any other penalty or forfeiture, and to any disability to which he may be subject, forfeit and pay for every such offense the sum of fifty pounds, to be recovered with full costs of suit, by action brought with the sanction of the attorney- general, in the name of the incorporated law society, in any of the superior courts of law at Westminster, or in any county court.^ § 101. Removal and suspension in Alabama. — Reference will now be made to a few of the statutory provisions in the United States, and merely by way of illustration. An attorney must be removed for the following causes by the courts of Ala- 1 37 and 38 Viet. chap. 68, sees. 8, 9, 10. 2 23 and 24 Viet. chap. 127, sees. 34, 35. 3 Ibid. see. 36. 190 SUMMARY JURISDICTION. § 101 bama : Upon his being convicted of a felony other than man- slaughter, or misdemeanor involving moral turpitude, in either of which cases the record of his conviction is conclusive evidence. When any judgment is rendered against him for money col- lected by him as an attorney, upon vt^hich judgment an execution has issued, and been returned no property ; in which case the record of the judgment and execution is conclusive evidence. The attorney may be removed or suspended upon its being shown to the satisfaction of the court that he has been guilty of any deceit or willful misconduct in his profession ; for a willful disobedience or violation of the order of a court requiring him to do or forbear an act connected with or in the course of his profession. The proceedings to remove or suspend an attorney may be taken by the court of its own motion, or upon the motion of any third party. The accusation must be in writing, and when the proceeding is taken by the court it may be drawn up by the solicitor or the clerk, under the direction of the court. If the proceedings are upon the information of another, the accusation must be vei'ified by the oath of the person making it, or some other person, and presented to the court. The court must then, if of opinion that the accusation would, if true, be grounds of removal or suspension, make an order requiring the accused to appear and answer the same at a specified day, and must cause a copy of the order and accusation to be served on the accused, within a prescribed time, before the day appointed in the order. The accused must appear at the time appointed, and answer the accusation, unless for sufficient cause the court assign another day; and if he do not appear, the court may proceed and determ- ine the accusation in his absence. The accused may answer, either by objecting to the sufficiency of the accusation or by de- nying its truth, either of which must be entered on the minutes. If the objection to the sufficiency of the accusation be not sus- tained, the accused must answer it forthwith. If he plead guilty or refuse to answer the accusation, the court must proceed to judgment of removal or suspension. If he deny the accusation, the court must immediately, or at such time as it may appoint, proceed to try the same, the accused having a right to demand a trial by jury. A judgment of acquittal is final ; but from a § 102 SUMMARY JURISDICTION. 191 judgment of removal or suspension the accused may appeal to the supreme court at any tune within thirty days after judgment. The proceedings, when instituted by the court of its own mo- tion, are conducted in the name of the State, the solicitor appear- ing to sustain the accusation, and when on the information of another in the name of the State, on the information of such person. Either party has a right to subpoenas and other process to compel the attendance of witnesses ; and testimony may be taken by deposition as in actions at law ; and the court may, in its discretion, require the informant to give security for costs, and failing so to do within the time prescribed, the proceedings must ,be dismissed at the costs of the informant. Upon the death of the informant, if there be but one, the pro- ceedings abate, unless some other person is substituted in his place, which may be done on application to the court. If there is more than one informant, the proceedings continue on the in- foi-mation of the survivors.^ § 102. In Arkansas. — Any attorney guilty of any felony or infamous crime, or improperly retaining his client's money, or of any malpractice, deceit, or misdemeanor in his professional capacity, or shall be an habitual drunkard, or shall be guilty of any ungentlemanly conduct in the practice of his profession, may be removed or suspended from practice upon charges exhib- ited against him, and proceedings thereon had. The charges must be exhibited in the county in which the offense is commit- ted, or in which the accused resides. The court fixes a time of hearing, allowing a reasonable time to notify the accused ; cita- tions are served upon him, and a copy of the charges. If he refuse or fail to appear, his appearance may be compelled by at- tachment, or the court may proceed ex parte. If the charges alleo-e a conviction for an indictable offense, the court, on the production of the record of conviction, removes the person so convicted, or suspends him from practice for a limited time, ac- cording to the nature of the offense, and without further trial. Upon other charges, the court has power only to suspend the .accused from practice until the facts shall be ascertained. If 1 Kev. Code Alabaiua, sees. 881-895. 192 SUMMAKY JURISDICTION. § 102 the charges be for an indictable offense, and no indictment be found, or, being found, shall not be prosecuted to trial within six months, the suspension shall be discontinued, unless the delay be produced by the absence or the procurement of the accused, when the suspension may continue until the final decision. ^ If any attorney, receiving money for his client, shall refuse or fail to pay the same over on demand, such attorney may be proceeded against in a summary way, on motion before the cir- cuit court, either in which he may reside, or in the county in which he received the money, and the court shall render judg- ment against him for the amount of money recei^'ed by such at- torney for the use of his client, with costs, and he shall be fur- ther dealt with as the court may deem just under the provisions of this act.^ An attorney cannot be held liable for money col- lected by him as such, unless a demand be made, and he refuses to pay over or remit, according to his client's instructions. His liability depends upon the principle of agency, and he holds money, when collected, as bailee.^ The record of conviction or acquittal of any indictable offense shall, in all cases, be conclusive evidence of the facts, and the court shall proceed thereon accordingly. When the matter charged is not indictable, the trial of the facts alleged shall be had in the court in which the charges are pending ; which trial shall be by jury, or, if the accused fails to appejir, or, appearing, does not require a jury, then by the court. In all cases of con- viction, the court must pronounce judgment of removal or sus- pension, according to the facts found. All charges must be verified by affidavit, and prosecuted by the prosecuting attor- ney of the circuit in which the charges are pending. On trial, the accused may except to any decision of the court, and may prosecute an appeal to the Supreme Court, or writ of error, in all respects as in actions at law. Every judgment of removal or suspension so made operates, while it continues in force, as a removal or suspension from practice in all the courts of the State ; convictions in other States have the same effect as 1 Ark, Digest, 1874, sees. 493-501. 2 Ibid. sec. 492, sec. 3(144, et seq. 3 Cases cited snpni ; Taylor ?>. Spears, (J Ark. .'i81. §§ 103-4 SUMMARY JURISDICTION. 193 though had in the State upon a production of a copy of the record.^ § 103. California. — The causes of suspension and removal of attorneys and counsellors in California, and the practice therein, are much the same as those of which an abstract has already been given above in the Alabama statute. The latter statute was vir- tually followed in the California code. In California, there are the additional causes of suspension or removal of " violation of the oath taken by him, or of his duties as such attorney and coun- sellor," and " corruptly and without authority appearing as at- torney for a party to an action or proceeding," and " lending his name to be used as attorney and counsellor, by another per- son who is not an attorney and counsellor." In all cases where an attorney is removed or suspended by a district court, the judgment or order of removal or suspension may be reviewed on appeal by the Supreme Court.^ § 104. New York. — An attorney or counsellor who is guilty of any deceit, malpractice, crime, or misdemeanor, may be sus- pended from practice or removed from office, by the supreme court, at a general term thereof. A copy of the charges against him must be delivered to him, and he must be allowed an op- portunity of being heard in his defense. The suspension or re- moval by the supreme court operates as a suspension or removal in every court in the State. An attorney pr counsellor who is o-uilty of any deceit or collusion, or consents to any with intent to deceive the court or a party, forfeits to the party injured by his deceit or collusion treble damages. He is also guilty of a misdemeanor. If he willfully delays his client's cause with a view to his own gain, or willfully receives money or an allow- ance for or on account of money, which he has not laid out or become answerable for, he forfeits to the party injured treble damages. If he knowingly permits a person, not being his gen- eral law partner, or a clerk in his office, to sue out a mandate or 1 Ark. Dig. 1874, sees. 502-509. 2 Code Civil Procedure Cal. See sec. 287; sees. 288-299; 1 Cal. 143; 1 Cal. 190; 20 Cal. 427. A. & C— 13. 194 SUMMARY JURISDICTION. § 105 to prosecute or defend an action in his name, he, and the person who so uses his name, each forfeits to the party against whom the mandate has been sued out, or the action prosecuted or de- fended, the sum of fifty dollars, to be recovered in an action.^ An attorney or counsellor shall not, directly or indirectly, buy, or be in any manner interested in buying, a bond, promissory note, bill of exchange, book debt, or other thing in action, with the intent and for the purpose of bringing an action thereon. He shall not by himself, or by or in the name of another per- son, either before or after action brought, promise or give, or procure to be promised or given, a valuable consideration to any person as an inducement to placing, or in consideration of hav- ing placed, in his hands, or in the hands of another person, a de- mand of any kind for the purpose of bringing an action thereon. A violation of these provisions is a misdemeanor, punishable accordingly, and by removal from office by the supreme court. But they do not prohibit the receipt of a bond, promissory note, bill of exchange, book debt, or other thing in action in pay- ment for property sold, or for services actually rendered, or for a debt antecedently contracted, or from buying or receiving a bill of exchange, draft, or other thing in action, for the purpose of remittance, and without intent to violate these provisions. A court of record has power to punish by fine and imprison- ment, or either, a neglect or violation of duty, or other miscon- duct, by which a right or remedy of a party to a civil action or special proceeding fjending in the court, may be defeated, im- paired, impeded, or prejudiced, among other cases, in the case of an attorney or counsellor for a misbehavior in his office or trust, or for a willful neglect or violation of duty therein, or for disobedience to a lawful mandate of the court, or of a judo-e thereof, or of an officer authorized to perform the duties of such a judge.^ § 105. Pennsylvania. — If any attorney at law shall misbe- have himself in his office of attorney, he shall be liable to sus- pension, removal from office, or to such other penalties as have hitherto been allowed in such cases by the laws of the Common- 1 Wait's N. Y. Code Civil Procedure, 1877, sees. 67-72. 2 Ibid. sec. 14. § 105 SUMMARY JURISDICTION. 195 ■wealth. If he shall retain money belonging to his client after demand made by the client for the payment thereof, it shall be the duty of the court to cause the name of such attorney to be stricken from the record of the attorneys, and to prevent him from prosecuting longer in the court.^ The several courts have power to make rules upon attorneys for the payment of money, and the delivery of deeds and other papers in their hands, belonging to their clients, and in every such case to enforce obedience to such rules by attachment.^ 1 1 Brightly's Purdon's Dig. Pa. p. 100. An attorney cannot be punished by suspension from his professional func- tions, for his contempt of process of the law, in neglecting to obey a subpoena. (Commonwealth r. Newton, 1 Gr. 453.) And an act, though highly discredit- able, if not infamous, and unconnected with an attfirney's duties, will not give the court jurisdiction to strike him from the roll ; but an attempt to make an opposing attorney drunk, so as to obtain an advantage of him in the trial of a cause, is good ground for so doing. (Dickens' Case, 67 Pa. 169.) "Where an attorney has been removed for official misconduct, the supreme court seem to have no power to supervise the proceedings. (McLaughlin's Case, 5 W. & S. 272. ) 2 Brightly's Purdon's Digest, p. 100. An attorney who has collected money for his client has, however, a right to deduct his fees from tlie amount in his hands. If a rule be taken on him to pay over the money, the court will compel immedi- ate justice, or inflict summary ptmisliment on the attorney if the sum retained he such as to show a fraudulent intent; and in such case he forfeits all claim to compensation. But if the answer to the rule satisfy the court that it was held back in good faith, and believed by the attorney not to be more than an honest compensation, the rule will be discharged, and the client remitted to his action. (Balsbaugh v. Frazer, 19 Pa. 99. ) He has no lien, however, upon a fund in court, even as against his client. (Dabois' Appeal, 38 Pa. 231.) 196 PRIVILEGES AND EXEMPTIONS. § 106 CHAPTER V. PRIVILEGES OF ATTORNEYS AS OFFICERS OF THE COURT- EXEMPTIONS. §108. Privilege in generaL § 107. Privilege from arrest. § 108. Privilege as to suing and being sued. § 109. Waiver of privilege. § 110. Privilege of counsel in argument. § 111. Under control of the court. § 112. Argument to be confined to the evidence. § 113. Comments on persons and their actions. § 114. Argument on the law. § 115. Limiting time of argument. § 116, Responsibility of counsel in argument. § 117. Publication of argument. § 106. Privilege in general. — ^Attorneys propei-ly admitted and enrolled are entitled to prosecute and defend all actions and suits at law and in equity, to prepare pleadings and other pro- ceedings connected therewith, and generally to transact all that comes within the scope of their employment. They may usu- ally practice in all inferior courts, unless the number of practi- tioners is limited in some way.^ If an attorney is restrained or prevented from practicing where he has a legal right to prac- tice, and without good cause, an action on the case may lie for the injury, and it is said, mandamus also, to swear the attorney into an inferior court.^ Regularly admitted and practicing attorneys were formerly supposed to be always present in court, and on that account have had various special privileges, some of which they still retain. These privileges concern chiefly the privilege from ar- rest, the privileges as to suing and being sued, exemptions from various civil duties, and the privilege of counsel in argument as 1 Davey's Case, March, 141, pi. 214; Hastings' Case, 1 Mod. 23; 2 Keb. 477, pi. 10; Oilman v. "Wright, 1 Sid. 410. 2 King c. Sheriff, 2 Show. 154; 1 Sid. 410. § 106 PRIVILEGES AND EXEMPTIONS. 197 to words spoken. These privileges, however, are not allowed so much for the benefit of the attorney as for the protection of the client, whose rights might be jeopardized did the privileges not exist.^ Thus, in England, when an attorney was plaintiff, he was formerly allowed in all personal actions to sue in his own court by attachment of privilege, and to lay and retain the venue in Middlesex, no matter where the defendant resided ; and when defendant he cannot in general be arrested, but must be sued also in his own court, by bill. This is to prevent the injury that might otherwise result to the business of clients by the ab- sence of attorneys, while going to other localities and attending other courts.^ The privileges of attorneys, as officers of the superior courts of Westminster, are very ancient, and were upheld for the sake of justice and for the benefit of the jDeople of England. They were regarded, too, as the immemorial privileges of the court and the suitors, and not merely of the attorney, or of any partic ular client even. They only required that the attorney should be on the roll and qualified to practice, and seem to have belonged to an attorney in every court in which he might be admitted and enrolled.^ But the privileges do not attach in the case of pro- ceedings by the executor or personal representative of the at- torney.* The privileges have been held to avail even against an immemorial local custom, a charter from the crown, or the general words of a statute, on the ground that they are the law of the courts in which they prevail, and therefore of sufficient force to control the operation of the common law itself, imme- morial custom, or general act of Parliament.^ 1 How V. Wooley, 1 Vent. 1 ; 2 Wils. 44 ; 4 Burr, 2113 ; Doug. 381 ; Gerrard's Case, 2 W. Black. 1125 ; 2 Ves. 201. 2 Doug. 313; 2 Chit. 63; 9 Price, 16. ■ 3 Welles V. Trahern, Willes, 240; Anderson's Case, 1 Lev. 249; Butt's Case, 1 Eoll. Abr. 489; Gerard's Case, 2 W. Black. 1125; Gardner?). Jessup, 2 Wils. 44; Mayor v. Berry, 4 Burr. 2116; Prior v. Moore, 2 Maule & S. 605; Skirrow v. Tagg, 5 Maule & S. 28; 9 Johns. 216; 1 Wm. IV, chap. 70, sec. 10; Elkins v. Harding, 1 Cromp. & .J. 354; Walker v. Rualiberry, 9 Price, 16; Bowyer v. Hos- kins, 1 Younge & J. 199. * Bishop V. Marsh, 8 Scott, 128; Scott v. Van Alstyne, 9 Johns. 216. sprouse's Case, Croke Car. 389; Stevens' Case, T. Eayin. 180; Stone's Case, 1 Vent. 16-29; Lodge's Case, 2 Lev. 156, pi. 190; 1 .Roll. Abr. 489; Armiugton's Case, Palmer, 403; Joliffe v. Langston, Ld. Kaym. 342; Kaye v. Denew, 7 Term Eep. 671. But a privilege accruing pendente lite does not avail; and it is usual 198 PRIVILEGES AND EXEMPTIONS. § 107 The privileges cease when the reasons upon which they are founded cease, as if an attorney has retired from practice, or has been out of practice for a certain period. The attorney must be a practicing attorney to be entitled ; for the presump- tion is, that the attorney is in court doing his duty.-' As in England the attorneys of each court are supposed to be always present, attending the court on behalf of their clients,^ their official duties in court are deemed to exempt them from filling many offices, such as mayor, alderman, sheriff, bailiff, overseer of the poor, rate collector, etc.,^ and they are also exempt from impressment,* enlistment,^ or being sworn in as tithing-men, constables,^ or jurors. But it appears as to offices which may be performed by deputy, no such privilege is al- lowed.'' In Pennsylvania, an attorney has been considered ex- empt from serving as overseer of the poor, supervisor of the public roads, and constable, but not from militia duty.^ Attorneys, though retired from practice, are held in Massa- chusetts to be exempt from serving as jurors.^ § 107. Privilege from arrest. — It was an ancient privilege of attorneys to be exempt from arrest on mesne process, or be- ing held to bail, because — attorneys being obliged to attend offi- cially, and, as the law presumed, continually, upon the courts — - they were always amenable to their own courts, and could not be drawn away to attend others.'" But the statute (1 and 2- on the re-adraission of attorneys to proride that they shall not take advantage of their privileges in any pending proceedings. (Moody's Case, Barnes, 42.) 1 Mavnard's Case, 2 Wils. 232; Anon. 1 Dowl. 208; 2 Johns. Cas. 102; Coleman, 133; Ogden v. Hughes, 2 South. 718; Brooks v. Bryant, 7 Term Eep. 25. See Skir- ro w w. Tagg, 5 Maule & S. 281 ; Prior c. Moore, 2 Maule & S. 605 ; Colt v. Gregory, 3 Cowen, 22. 2 Walker v. Eushbury, 9 Price, 27. 3 Mayor v. Berry, 1 W. Black. 636; i Burr. 2109; Eichmond's Case, 1 Barnes, 29; Eespublioaa. Fisher, 1 Yeates, 350. ^ Venable's Case, Cro. Car. 11. ° Evingdon's Case, 2 Strange, 1143; Heaton's Case, 2 Barnes, 33. In New York, attorneys are not privileged from serving in the militia. (In re Bliss, 9 Johns. 347.) 6 Prouse's Case, Cro. Car. 389; Cower'a Case, Noy, 112; o and 6 Vict. chap. 109, sec. 6. ' Gerard's Case, 2 W. Black. 1125. See Stone's Case, 1 Lev. 265. 8 Eespublica v. Fisher, 1 Yeates, 350. 9 In re Swett, 20 Pick. 1. 10 Beck 0. Lasin iTidd's Pr. 75; Wheeler's Case, 1 Wils. 298; Anon. Lofft, 151; § 107 PRIVILEGES AND EXEMPTIONS. 199 Vict. chap. 110) gave an unqualified power of arrest on a judge's order in case of parties about to go abroad. This destroyed the privilege of an attorney from arrest under such circumstances. ^ Nor do these privileges of an attorney extend to cases of indict- ments, informations, or suits on behalf of the crown ; for it is said that it would be unreasonable that the court should allow protection to those who offend against the peace of the commu- nity and the interest of the government.^ An attorney is privileged from arrest while attending a court or a judge.^ An attorney, arrested at a coffee-house while at- tending a motion in court, has been discharged ; ^ so also where he was returning from attending a taxation of costs.® A solicitor, arrested on his way from his residence to Lincoln's Inn Hall, without deviation, for the purpose of attending a bankrupt petition as solicitor, was discharged on personal exam- ination, by the Lord Chancellor ; ^ and where a solicitor was ar- rested on his return from attending the master, the court or- dered him to be discharged, not only in the original action, but from all subsequent detainers. '^ In furtherance of justice, and for the protection of those who are engaged in its administration, attorneys are also generally privileged from arrest in civil suits while actually employed in the conduct or management of legal proceedings.^ They are, as Lewis' Case, ■! Mori. 181; Scott t'. Van Alstyne, 9. Johns. 216; 5 Wend. 90; In re Emmet, 2Caines, 387; Ogden i\ Hughes, 2 South. 718; Fowler c. Hunt, 10 Johns. 163; i ^\■end. 204; 1 Ibid. :32; i Call. 07; 9 Wund. 503. 1 Thomson v. Moore, 1 Dowl. N. S. 283. 2 Kirklam v. Whaley, 1 Ld. Eaym. 27; Reg. v. Payne, i Leon. 1. It is .said that an attorney cannot waive his privilege, because it is not allowed for liis own sake, but for the sake of the client and tlie court. (Scott v. Van Alstyne, 9 Johns. 216; Gardner v. .Jessop, 2 Wils. 42; Parrill v. Head, Barnes, 41.) But this is not universally the case. . 3 Garden v. Sheers, Ca. Pr. C. P. 60-102; Long's Case, 2 Mod. 181; Newman v. Harrison, Ca. Pr. C. P. 140. ■1 Griffith r. Brown, Ca. Pr. C. P. 64. » Morley v. Grubb, Ibid. 104. But see Maule v. Grubb, 1 Barnes, 200. 6 Gascoyne's Case, 14 Ves. 183; Castle's Case, 16 Ves. 412. ' Ex parte Ledwich, 8 Ves. 598; Ex parte King, 7 Ves. 312; Moore v. Bootli, 3 Ves. 350; Lidjier v. Birch, 9 Ves. 69; Baker «. Duncomb, Sldn. 549; 3 Lev. 398; Comb. 319; Holt, 590; Duffy v, Oakes, 3 Taunt. 166; Eamsbottom h. Harcourt, 4 Maule & S. 585. ' Ogden V. Hughes, 2 South. 718; 5 'Wend. 90; Gibbs v. Loomis, 10 Johns. 463; Secor V. Bell, 18 Johns. 52; Corey v. Kussell, 4 Wend. 204; 1 Wend. 33; Common- wealth V. Ronald, 4 Call, 97; 9 Wend. 503; 4 Hill, 59. 200 PRIVILEGES AND EXEMPTIONS. § 107 a general rule, pi-ivileged from arrest, eundo, rnorando, et re- deimdo, from the court where the business is pending, and while attending a reasonable time at other places in furtherance of the business in hand, as while proceeding from a private residence to the office for papers, and from thence to court. A slight de- viation from the direct road is not sufficient to destroy the pro- tection thus afforded, though it is incumbent on the party arrest- ed under such circumstances to account for the deviation.^ When an attorney is arrested, and desires to set up his privi- lege, he should apply summarily to the court in which the busi- ness is pending, or the court out of which the process issued, for an order for his immediate discharge from that arrest, and the order should be served. In England, an attorney is not privileged when the action is wholly at the suit of the king, or if he be sued in the exchequer as accountant to the king.^ If an attorney sue or be sued as ex- ecutor, or administrator, or. bail, he may be proceeded against as a common person.'^ Nor is he privileged from arrest if sued jointly with others, unless such other person is also privileged.'' Nor is he privileged if sued with his wife for a debt incurred by her dtim sola, nor if he sues in right of his wife, or j.oins with her in the action.^ An attorney, to be privileged from arrest, must have the certificate required by law.'' An attorney actually attending court for the purpose of mak- ing a special motion, if arrested on a ca. sa. during his attend- ance, will be discharged from the arrest. The application for the discharge is necessarily ex ^sarte. Notice need not be given to the attorney of the party suing out the execution. The rights 1 Anon. Lofft, 434; Castle's Case, 16 Ves. 412; Gibbs v. Loomis, 10 JoLns. 4Uo: and eases cited supra; Gascoyne's Case, 14 Ves. 183; AVlUiams v. AVebb, 5 Scott N, S. 898; 12 Law J. N. S. C. P. 89: 2 Dowl. N. S. 660; Ricketts v. Garner, 1 Cliit. 682; 7 Price, 699; Attorney General v. Company, 7 Bear. 157. See Jones v. Rose, 11 Jur. 379. 2 Com. Dig. Attorney B. 17; 2 Eol. Abr. 374; 3 Lev. 398. 3 Newton v. Rowland, Ld. Eaym. 533; 12 Mod. 316; Taylor ;■. Fuller, Ca. Pr. C. P. 64. i iMolyn V. Cooke, 1 Vent. 299; Dyer, 377; Poph. 379: 1 Salk. 544; 4 Maule ..t S. 585. 6 Roberts v. Mason, 1 Taunt. 2.54; Drew v. Rose, 2 Ld. Raym. 1398. 6 Dyson v. Birch, 4 Bos. & P. 4; Brooke v. Brj'ant, 7 Durn. & E. 25-26; Prior «. Moore, 6 Maule & S. 0(15; Skirrow v. Tagg, 5 Ibid. 281; Bernard v. ^A'iunigton, 1 Chit. 188. § 107 PRIVILEGES AND EXEMPTIONS. 201 of the party suing out the execution are not prejudiced by the discharge. After the privilege ceases, the same writ may be served, or a new execution may be issued. The parties stand in the same situation as though the defendant had never been arrested.^ The privilege does not extend to the attorney while remaining at home, although he contemplates attending court.^ The privilege may be waived by the attorney, as where, in- stead of claiming the privilege, he told the officer to prepare a bail-bond, which he afterward executed. A counsellor has been held not to be privileged from arrest while attending before an examiner, master, or judge out of court.'^ But in other cases the privilege has been extended to an attorney, while in at- tendance at the master's office taxing costs, as well as returning therefrom,* and to one attending an arbitration,^ and to a solic- itor while on his way to judge's chambers to attend a sum- mons," and to a solicitor who had retired from practice, and who was taken on attachment for non-payment of costs in a chan- cery suit, whilst returning from fvttending an appeal in the House of Lords as agent for the appellant." The legislature may, by express words, take away the privilege, but it cannot be taken away by implication.^ An attorney's privilege from arrest does not extend to one about to leave the country,^ nor to one not engaged for either of the 23arties in a cause, but merely attending as the professional adviser of bail put in for the pur- pose of dissolving an attachment,^" nor to an attorney going to 1 Humphrey v. Gumming, 5 Wend. 90. 2 Corey v. Eussell, 4 ^\'end. 204. 3 Cole )■. McClellan, 4 Hill, 59. That the privilege from arrest does not extend beyond the time of necessary attendance on court, see: Fowler v. Hunt, 10 Johns. 463; Secor r. Bell, 18 Johns. 52; Foster v. Gansey, 1.3 Johns. 465. * In re Hop6, 9 Jur. 856. 5 -Webb c. Taylor, 1 Dowl. & L. 676; 8 Jur. 39. 6 In re Jewett, 10 Jur. N. S. 814; 33 L. J. Ch. 730; 33 Beav. 559; 12 Week. E. 945; 10 L. T. N". S. 2.56. '' Attorney General r. Skinners' Co. 8 Sim. 377. See Clutterbuck v. Hulls, 4 Dowl. & L. 80; IB. (.'. E. 165; 10 Jur. 1082; 14 Law J. Q. B. 310; Strong v. Dick- in.son, 5 D. P. C. 86; 1 Mees. & W. 488; 2 Gale & D. 83. The bar of Georgia is not privileged from arrest on a ca. sa. (Elam v. Lewis, 19 6a. 608.) 8 In re Bliss, 9 Johns. 346. ^Thompson v. Moore, 1 Dowl. N. S. 283; 5 Jur. 1009; Flight v. Cook, 1 Dowl. & L. 174; 13 Law J. Q. B. 78. i» Jones V. Marshall, 2 Com. B. N. S. 615; 3 Jur. N. S. 916; 26 Law J. Com. P. 229. 202 PRIVILEGES AND EXEMPTIONS. § 108 attend a client in a court in which he has not been admitted to practice, 1 nor to the managing clerk of the attorney, while go- ing to attend before a judge at chambers, on business of his master,^ nor to an attorney not actually practicing.^ § 108. Privilege as to suing and being sued. — At com- mon law, an attorney had, in all personal actions, the right of suing in the court of which he was an attorney, by an attach- ment of privilege; and having brought the defendant before the court by that writ, he might have declared against him, and pro- ceeded in the action as in ordinary cases.'' This process has not generally been in use in America. It is referred to in an old case as being once in use in New York.^ And now, even in En- gland, the right is abolished by statute, and an attorney must sue. like any other person. As defendant, also, the attorney had the privilege, in England, of being sued by bill, in the court in which he practiced. The effect was that, while he continued to practice, he could in no case be arrested upon mesne process, nor held to bail, even though it should appear that he was about to quit the kingdom, though this did not apjjly to an arrest on a capias ad satisfaciendum; his exemption from arrest on final process existing only during his attendance on a cause.^ Attorneys have also, in England, peculiar privileges in regard to venue. But to avail themselves of this, they must sue in person as attorneys, and not as ordinary persons by other attor- neys." In King V. Burr, (20 Johns. 274) in Xew York, a simi- lar privilege was claimed, but denied, yet seems to have formerly existed.^ The object was to prevent attorneys from being called away 1 Price c. Clutterbuck, 1 Fost. & F, 379. 2 Phillips V. Pound, 7 Ex. 881; 16 Jur. U15; 21 Law J. Ex. 277. 8 Anon. 4 Moore & P. 810; 1 D. P. C. 208. The privilf ges of an attorney do not protect him from the consequences of procuring or advising a judicial officer to commit an injurious act be.yond the limits of his authority, however correct the intentions and motives of the attorneymay be. (Ecvill i\ Petitt, 3Met. Ky.314.) 4 Pitcher «. Sheriff, 2 Marsh. 152. " Allaire r. Ouland, 2 Johns. Cas. 52. 6 Brook V. Bryant, 7 Term Rep. 25 ; Redman's Case, 1 Mod. 10. ' Partington i\ AN'oodcock, 2 Dowl. O. S. 550; Burn c. Passmore, 1 Ibid. 17 ; Brad- shaw c. Burton, 7 Ibid. ■■2!); Harrington r. Page, 2 Ibid. KM; Lawless r. Timms, 3 Ibid. 707; Pye v. Leigh, 2 W. Black. 10IJ5. 8 In re Emmet, 2 Caines, 387. § 108 PRIVILEGES AND EXEMPTIONS. 203 into other courts, and therefore the attorneys at Westminster have been allowed these particular privileges in regard to their necessary attendance on those courts, viz: to sue and be sued in their own respective courts, and an exemption, with some exceptions, from being impleaded elsewhere. These privileges arose from the supposition that the business of their clients would suffer by their being drawn elsewhere. ^ In suits against them they might be sued by bill in their own courts, setting forth the cause of action; as they were always presumed to be present, each court had, at common law, origi- nal jurisdiction over them.^ They have had the power of re- taining the vemie of all actions in which they are personally interested as plaintiffs in the county of Middlesex, where the superior courts are held ; as the venue, when properly laid in Middlesex, cannot be changed, though the cause of action arose in another county, or the witnesses all reside there.^ Where the plaintiff and defendant are both attorneys of the same court, the defendant is entitled to be sued by bill, and if not so sued, he may plead his privilege in abatement, or the court, on motion, will stay the proceedings.* Where an attorney was sued by common process, on a bill of exchange, the plaintiff being also an attorney, the court set aside the proceedings with costs. ^ When the plaintiff and defendant are both attorneys, and of different courts, the plaintiff's privilege prevails, and he may sue in his own court. ^ iBeckt). Lewin, 1 Tirtd's Pr. 75; Wheeler's Case, 1 Wils. 298; Anon. Lofit, 151; Bac. Abr. Priv. B. 15 Johns. 242 ; 10 Johns. 332; 2 Wend. 257 ; In re Emmet, 2 Caines, 387; 1 Johns. Cas. 32; 3 Coav. 368. See as to service of papers, etr., in suits against attorneys in New Yorlt : Bank r. Sherwood, Hi Johns. 43; Baclf us V. Kogers, 8 .Johns. 346; Hallenback «. Whitaker, 17 Johns. 1; Lawrence v. "Warner, 1 Cowen, 98; Brown ii. Childs, 17 Johns. 1; Little r. Kellogg, 18 Wend. 528. 24 Inst. 71; Lonsdale i'. Littledale, 2 H. Black. 270; 9 Johns. 216; 2 Caines, 387; 2 Johns. Cas. 102; Coleman, 1.33; 10 Johns. 463; 3 Cowen, 368; 4 Hall, 59; Butt's Case, 1 Rolls Abr. 489; Prouse's Case, Cro. Car. 389; Hussey c. Jordon, Doug. 381; Ailway c. Burrows, Doug. 363; Dyer c. Levy, 4 Dowl. 630; Lewis w. Kerr, 2 Mees. & W. 226; S. G. 5 Dowl. 447; Pitt c. Pocock, 2 Cromp. & M. 146; 1 Tyrw. 85; Board v. Parker, 7 East. 47; Johnson v. Bray, 2 Brod. & B. 698. sPye V. Leigh, 2 W. Black. 1065; Barnes, 479, note; 2 Salk. 668; Pitcher v. Monmouth, 2 Marsh, 152; Partington v. Wood, 2 Dowl. 550. See Fisher v. Field- ing, 1 Price, 384. 1 Barber ». Palmer, 6 Durn. & E. 524; 8 Ibid. 395; Tidd's Pr. 82. 5 Atkins V. , 1 Chit. 63. 6 4 Dowl. & R. 73; 1 W. Bljick. 19; 2 Ibid. 1:325. 204 PRIVILEGES AND EXEMPTIONS. § 109 The privileges as to suing were restrained to those suits only which the attorneys brought in their own right, or which were brought against them in their own right ; for if they sued or were sued in a representative character, as executors, administrators, assignees, etc., they then represent ordinary persons, and were not entitled to privilege. ^ But the cause of action need not have accrued to or against the attorney in his official or profes- sional character. The privilege equally attached if the action arose out of the conduct of the attorney in his private capacity,^ An attorney who had ceased to practice a year and had en- tered the army, was held to have lost his privilege as to being sued. The absence must be by betaking himself to a profession or business incompatible with his practice as an attorney. If it is in consequence of any temporary absence he will not lose his privilege. Attendance is the ground and foundation of the privilege. The object is, that attorneys may not be drawn into other courts, or to other business, to the injury of suitors.^ Whenever, in England, an attorney has had the privilege of being sued exclusively in his own court, a person who was at- torney of two superior courts might be sued in either, at the option of the plaintiff.* An attorney sued jointly with an un- privileged person aj^peared to lose his privilege.'^ § 109. Waiver of privilege. — An attorney might waive his privilege, either when plaintifE, by suing as a common person, or 1 Gage's Case, Hob. 177; Pole's Case, Godb. 10; Anon. Latch, 199. 2Newtou V. Rowland, 12 Mod. 316; Salk. 2, pi. i; 1 Ld. Raym. 533; Drew v. Rose, 2 Ld. Eaym. 1398; Keeley v. Lyncli, 9 Ir. L. E. 563; iSufCy v. Oakes, 3 Taunt. 166. 3 Brooks V. Patterson, 2 Jolms. Cas. 102; 3 Cowen, 22. But see Ogden v. Hughe, 2 South. 718, where an attorney was held privileged from arrest unless the privilege was taken away by rule, though he did not show that he had acted as attorney within a year. 4 Walford v. Fleetwood, 14 Mees. & W. 44<); 3 Dowl. & L. 65; Hunter v. Neck, 3 Scott X. E. 448; 3 Man. & G. 181; 14 Law J. Ex. 271; (iroom v. Wortham, 2 Dowl. X. S. 657; 5 Scott N. E. 799; 12 Law J. Com. P. 88. See South Stafford- shire R. R. Co. V. Smith, 1 Lown. M. & P. 515; 5 Ex. 472; 19 Law J. Ex. 356; Grace r. Wilmer, 6 El. & B. 982; :i Jur. N. S. 64; 26 Law .1. Q. B. 1. 5 Ra.strick v. Beckwith, 2 Dowl. & L. 024; 8 Scott N. R. 716; 7 Man. & G. 905; 3 Jur. 1030; 14 Law J. Com. P. 1; Robarts v. Mason, 1 Taunt. 2.54; but see Rams- bottom V. Harcourt, 4 Maule & S. 585. See as to the privilege of suing in the superior courts : 9 and 10 Vict. chap. 95 ; 10 and 11 ^'ict. chap. 71; 12 and 13 Vict, chap. 101, sec. 18; Jones c. Brown, 2 Ex. 329; 5 Dowl. & L. 716; 12 Jur. 380. § 110 PRIVILEGES AND EXEMPTIONS. 205 when defendant, by not claiming it in due time, or in a proper manner.! But in New York, where it seems to have once ex- isted, an attorney, to get rid of his privilege, was compelled to apply to the court, and was not allowed to waive it without an order.^ If he waived his privilege, he could not afterward re- sume it.^ § 110. Privilege of counsel in argument. — " The benefit of the constitutional right to counsel depends very greatly on the freedom with which he is allowed to act, and to comment on the facts appearing in the case, and on the inferences deduci- ble therefrom. The character, conduct, and motives of parties and their witnesses, as well as of other persons more remotely connected with the proceedings, enter very largely into any ju- dicial inquiry, and must form the subject of comment, if they are to be sifted and weighed. To make the comment of value, there must be the liberty of examination in every possible light,, and of suggesting any view of the circumstances of the case, and of the motives surrounding it, which seems legitimate to- the person discussing them. It will often happen in criminal proceedings, that while no reasonable doubt can exist that a. crime has been committed, there may be very great doubt whether the prosecutor or the accused is the guilty party ; and to confine the counsel for the defense to such remarks concern- ing the prosecutor as he might justify if he had made them without special occasion, would render the right to counsel, in many cases, of no value. The law, justly and necessarily, in, view of the importance of the privilege, allows a very great liberty in these cases, and surrounds them with a protection that, is always a complete shield, except where the privilege of coun- sel has been plainly and palpably abused."* iHern v. Howard, 1 W. Black. 231; Hetlierington v. Lowtli, 2 Strange, 837; Poulton V. Goddard, 1 Comb. 143; Welland v. Truman, 1 Bos. & P. 629; Seaman V. Dee, 2 Lev. 39; 1 Vent. 198; Dent u. Lambert, Barnes, 479. 2 Scott V. Van Alstyne, 9 Johns. 216. See Cole v. McCJellan, 4 Hill, 59. 3 Dyer, 287. See Fogg v. Madan, 1 Bos. & P. 629; Parker v. Vaugban, 2, Bos. & P. 29; Unwin v. Eobinson, Barnes, 53; Bands v. Bodiner, Cartbew, 377; Jones «, Bodeenor, 1 Ld. Eaym. 135. *Cooley's Const. Lim. *443; Brook v.. Montague, Gro. Jac. 90. Approved and applied in Hodgson v. Scarlett, 1 Barn. & Aid. 232. See also Mackay v. Ford, 5. Hurl. &N. 792; McMillan v. Birch, 1 Bin. 178. 206 PRIVILEGES AND EXEMPTIONS. § HO An attorney, therefore, in the discussion of his client's cause, is not liable for words spoken or written relative to the matters in controversy, or subjects which incidentally arise in the course of the trial. And no action will lie for such speaking or writing, however false, defamatory, or malicious may be the words, pro- vided the matter was material to the issue or inquiry before the court.i But if an attorney wantonly departs from the evidence and point in issue, with an intent to injure the character of the adversary or that of others, without propriety or probable ground, he is responsible.^ To say that no res-ponsibility attaches, however false or ma- licious the words may be, seems to be stating the rule broadly ; but, with the proviso above mentioned, it is fully sustained by the authorities. Chief Justice Shaw has stated the rule as follows : " We take the rule to be well settled by the authoi-ities that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore if spoken elsewhere would import malice and be actionable in themselves, are not actionable, if they are applicable and pertinent to the subject of the inquiry. The question, therefore, in such cases is, not whether the words spoken are true, not whether they are action- able in themselves ; but whether they were spoken in the course of judicial proceedings, and whether they are relevant or perti- nent to the cause or subject of the inquiry. And in determining what is pertinent, much latitude must be allowed to the judg- ment and discretion of those who are intrusted with the conduct of a cause in court, and a much larger allowance made for the ardent and excited feelings with which a party or counsel, who naturally and almost necessarily identifies himself with his client, may become animated by constantly regarding one side only of an interesting and animated controversy in which the dearest , rights of such party may become involved." The limit to the privilege was considered by him to be this : 1 Newtield v. Copperman, 15 Abb. Pr. N. S. 360; Marsh i'. Ellsworth, 36 How. 532; 1 Sweeny, 52; Garr v. Selden, 4 N. Y. 91; Commonwealth i\ Culver, 1 Pa. L. J. E. .361. 2 Ibid. ; Marsh v. Ellsworth, 50 N. Y. 309; King v. Wheeler, 7 Cowen, 725; Has- tings ('. Lusk, 22 Wend. 410; Gilbert v. People, 1 Denio, 41. § 110 PRIVILEGES AND EXEMPTIONS. 207 That a party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness, or third person, which have no relation to the cause or subject-matter of the inquiry. Subject to this restriction, it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow coun- sel full freedom of speech in conducting the cases and advocat- ing and sustaining the rights of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions. ^ The privilege accorded to advocates has always been very great while they are actually commenting upon the conduct of parties, in any case in which they are engaged as counsel. The extent of the privilege has been asserted in very broad terms. And in Wood V. Gunston, Styles, 462, it was said, " that if a counsel sjjeaks scandalous words against one in defending his client's cause, an action lies not against him for so doing, for it is his duty to speak for his client, and it shall be intended to be spoken according to his client's instructions." But this is not the true reason ; and Lord Ellenborough, in repudiating this doctrine, and commenting on its injustice, said : ^ "If an action be brought against a counsel then, according to that case, he is justified, because it will be intended that he s^ioke by the information of his client, and if an action be brought against the client, he may justify by showing that he gave no such information to his counsel. So that, if that case were law, an injured party would be without remedy. There must be some limit laid down." In this case, an attorney named Hodgson brought an action against Scarlett, afterward Lord Abinger, who had, at the trial of a cause in which the former acted as attorney for the plaintiff, described him, in his address to the jury, as " a fraudulent and wicked attorney." The court decided the action not maintain- able. Lord Ellenborough, in delivering the judgment, used the following language : " A counsel, intrusted with the interests 1 Hoar !■. Wood, 3 Met. 197; Padmore v. Lawrence, 11 Ad. & E. 380; Ring v. Wheeler, 7 Cowen, 725; Mower v. Watson, 11' Vt. 356; Gilbert v. People, 1 Denio, 41; Hkstings r. Lusk, 22 Weiid. 410; Bradley «. Heath, 12 Pick. 163; Warner?). Paine, 2 Sand. Ch. 195; Garr v. Selden, 4 N. Y. 91; Jennings v. Paine, 4 Wis. 358. 2 Hodgson V. Scarlett, 1 Barn. & Aid. 238. 208 PRIVILEGES AND EXEMPTIONS. § 110 of Others, and speaking from their information, for the sake of public convenience, is privileged in commenting fairly and hona fide on the circumstances of the case, and in making ob- servations on the parties concerned, and their instruments or agents in bringing the cause into court. Now, the plaintiff in this case was not merely the attorney, but was mixed up in the concoction of the antecedent facts, out of which the original cause arose ; he was cognizant of all the circumstances, and knew-that the plaintiff had no ground of action in that case, in consequence of having already received more than the amount demandable by him. It was in commenting on this conduct that the words were used by the defendant. He had a right so to comment, for the plaintiff was mixed up with the circum- stances of the case, and was the agent and instrument in the transaction. The defendant then says that he is a fraudulent and wicked attorney. These were words not used at random and unnecessary, but were a comment upon the plaintiff's con- duct as attorney. Perhaps they were too strong — it may have been too much to say that he was guilty of fraud as be- tween man and man, and of wickedness in foro divino. The expression, in the exercise of a candor fit to be adopted, might have been spared. But still a counsel might, iona fide, think such an expression justifiable under the circumstances. It ap- pears to me that the words spoken were uttered in the original cause, and were relevant and pertinent to it, and consequently that this action is not maintainable." This decision is based upon two leading grounds, viz., (1) the information given by the client, and (2) its relevancy to the cause. Still older authorities have made the same distinctions. In the reign of James I,^ Sir Henry Montague pleaded, in an action brought against him, that he had spoken certain words com- plained of as consiliarius et peritus in lege. The court adjudged that " a counsellor in law retained, hath a privilege to enforce anything which is informed him by his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false ; but it is at the peril of him who informs it, for a counsellor is at his peril to give in Brook ti. Sir Henry Montague, Gro. ,Tac. 90. § 110 PRIVILEGES AND EXEMPTIONS. 209 evidence that which his client informs him, being pertinent in the matter in question, otherwise action upon the case lies against him by his client, as Popham said ; but if he give in evidence anything not material to the issue which is scandalous, he ought to aver it to be true, otherwise he is punishable ; for it shall be contended as spoken maliciously and without cause ; which is good ground for an action." The doctrine attributed to Popham was doubtless the law in very early times, and action on the case would probably lie, if a counsellor refused " to give in evidence that which his client in- formed him." 1 Afterward, however, it was expressly decided to the contrary, on the ground that the law looked upon the ser- vices of a counsel as given gratuitously, so that he is not an- swerable for any neglect or default in the conduct of a cause. Going several lengths further upon the question of immunity of counsel at a trial, Mr. Justice Bayley, in a later case,^ said : " The speech of a counsel is jn-ivileged by the occasion on which it is spoken ; he is at liberty to make strong, even calumnious observations against the party, the witnesses, and the attorney in the cause. The law presumes that he acts in discharge of his duty, anc^ in pursuance of his instructions, and allows him this privilege, because it is for the advantage of the administra- tion of justice that he should have free liberty of speech. But the privilege is confessedly confined to the utterance of the words complained of in a court of justice. If the counsel who has spoken them, or any one else, afterward publishes or repeats them out of court, he becomes liable to an action. The privilege is strictly one of counsel in court. It was decided in the case of Flint V. Pike, 4 Barn. & C. 480, that, although any one is ' at liberty to publish a history of the trial, that is, of the facts of the case, and of the law as applied to those facts, he is not at liberty to publish observations made by counsel injurious to the character of individuals.' " The privilege, then, of argument by counsel appears to be established by precedent and guaranteed by constitutional law. Counsel represents a party. He is recognized as constituting an 1 Rolle's Abridg. 91. ^ punt v. Pike, 4 Barn. & C. 478. A. & C— 14. 210 PRIVILEGES AND EXEMPTIONS. §111 element in judicial investigation. His right to participate, in be- half of his client, in the examination of witnesses and in argument to the jury, is fully assured. A party to a suit is not compelled to employ counsel to conduct it, but has usually a constitutional right to appear m propria persona} In a case in Georgia,^ there was an assignment of error, because the court below charged the jury that in determining the question they \vere not " to look to the argument of counsel." The court .said : " They must looh to the argument of counsel. Parties have a right to appear by counsel, and it is the privilege of counsel to address the jury on the facts. If the jury are to disregard the argu- ment of counsel altogether— if they are to shut their ears to their illustrations, comments, and reasonings — how unmeaning, indeed, how absurd, is the appearance of counsel. It is a most valuable right to be represented by learned and eloquent counsel, not only before the coui-t as to the law, but also before the jury as to the facts. * * * The true view of the position of counsel before the jury is that of aids or helps. They are officers of the court, amenable to its authority, subject to its correction, and restrained by usages of honor and courtesy, which, however in some in- stances disregarded, are as ancient in their origin, and as potent for good, and as generally respected as any usages which belong to any class of the highest grade of civilized man. The duties of the advocate are among the most elevated functions of hu- manity. It is the business of the jury to listen, to be informed, but not to obey." § 111. Argument of counsel under control of the court. The 23rivilege of counsel as to argument being understood, it is also to be borne in mind that the right is to be exercised under the control and direction of the court. The determination of the question as to what shall be admitted in argument to the jury, outside of the facts brought out in evidence, the degree of invective allowed to counsel, and the time during which the argument may continue, have generally been considered subject to judicial regulation.^ 1 May V. A\'illiams, 17 Ala. 2:i. 2 Garrison o. Wilooxson, 11 Ga. 154; Proffatt on Trial by Jury, sec. 24S, and note. 3 State V. Hamilton, 55 Mo. 520; State n. Waltliain, 48 Mo. 55; Proffatt on Trial by Jury, sec. 2411. See Trial of Dean of St. Asaph, 21 How. St. Tr. 847. :§§ 112-13 PRIVILEGES AND EXEMPTIONS. 211 § 112. The argument of counsel is also to be confined "to the evidence. — Counsel must confine themselves to the facts in evidence. This Is a rule frequently violated. It is the duty of a CiOurt to check any departure from the evidence, and to stop counsel when he introduces irrelevant matters, or facts not supported by the evidence.^ If an objection be made to this course of argument, it is error for the court to permit it, and a new trial may be granted for such error; but where counsel for the State made comments outside of the evidence, and no objection was made, it was held not error.^ It has been said that a court may refuse to allow a - plaintiff's counsel to argue a case before the jury, there being no evidence in the cause legally sufficient from which they can legitimately find a verdict for the plaintiff.^ At times, the court should not wait for the objection of the ■ opposite party when a counsel commits a flagrant breach of the rule, as where a counsel attempts surreptitiously to get before the jury facts which have not been proven, and where an attor- ney, in arguing his cause on his own account, gave an account of an attempt by a person not a party to the record to assassin- ate him.* But where there is a conflict of testimony, it is tot error for the court to permit counsel to state to the jury the facts as proved, according to his view of the case.^ In the exercise of this power to control counsel, and to stop and correct him when the purport of the evidence is mistaken, a court should not express its opinion on the facts of the case. It has been held error to permit counsel to read and comment upon, as part of the argument to the jury, the minutes of evi- dence taken at a former trial between the same parties.^ § 113. Comments on persons and their actions. — A judge has power to stop an attorney who abuses his privilege in 1 Dlckerson v. Burke, 25 Ga. 22B; Dostert). Brown, Ibid. 24; Bullock «. Smith, 15 Ibid. 395; Cook v. Bitter, 4 E. D. Smith, 233; Lloyd v. Hannibal K. E. Co. S3 Mo. 509. 2 Tucker v. Henniker, 41 N. H. 317; Davis v. State, 33 Ga. 98. 3 Bankard v. Baltimore E. E. Co. 34 Md. 197. * Berry v. State, 10 Geo, 511; Saunders v. Baxter, G Heisk. 369. 5 Hotcher v. State, 18 Ga. 4H0; McNab v. Lockhart, Ibid. 495; Proilatt on Trial by Jury, sec. 250. ^ 6 Proffatt on Trial by Jury,' sec. 250; Bill v. People, 14 111. 432; Martin v. Orn- dorff, 22 Iowa, 505. 212 PRIVILEGES AND EXEMPTIONS. § 114 commentino' on a witness and his testimony. Tliis power is usually exercised sparingly, but it should be exercised promptly and firmly when the abuse is gross — as where a counsel com- mented on a prisoner not giving evidence in his own behalf, it was held error for the court to allow it, and a new trial was granted.^ So where a defendant in a criminal case has not pro- duced any evidence to sustain his general reputation and moral character, it is improper for counsel to argue to the jury that his failure to do so may be considered against him.^ But cer- tain acts of a party tending to show bad faith and dishonest dealing on his part, are properly the subjects of comment to the jury. So where a defendant, being asked if he had not dis- posed of his property to avoid a recovery in the action, and had not since attempted to sell the same property, it was considered proper to comment on his answers.^ The boundaries that separate legitimate argument by illustra- tion, from an attempt to covertly introduce facts bearing on the case unconnected with the evidence, constitute a question that must be decided on many occasions by the court in its discre- tion. It has been said that an advocate, however unrestricted he may or ought to be in the use of all the forms of rhetoric, such as invective, satire, ridicule, or humor, and every varietv of illustration drawn from the facts in evidence, or from facts hypothetically assumed, ought not to be allowed to make him- self a witness, and state facts within his own knowledge touch- ing- the Case under discussion.* § 114. Argument on the la^v. — Whether an argument on the law of the case can be made to the jury has been doubted. It has been held that it should not be permitted when the court 1 Proffatt on Trial by JurJ^ sec. 252; Crandall i\ People, 2 Lans. 309; State r. "Williams, 65 N. C. 505; .Jenkins f. Ore-Dressing Co. Ibid. 6U3; Derries i . Hay- wood. 63 N. C. 63. 2 Pletclier i'. State, 49 Ind. 12i. 3 Proffatt on Trial by Jury, sec. 252; State r. Lassiter, 70 X. C. 462. The non- introduotion of a settlement on which it is relied that a note, the subject of the action, was brought into account and satisfied, is a proper circumstance for comment before the jury, on the trial for the recovery of tlie amount of the note. (Chambers v. Brigman, 68 N. C. 274; (iray v. Burk, 19 Tex. 228; Cross r. <^!arrett, 35 Iowa, 480. •• Proffatt on Trial by Jury, sec. 250; Bell r. People. 14 111. 432. § 114 PRIVILEGES AND EXEMPTIONS. 213 is asked for a statement of the law and gives it to tbe jury as authoritative, and the court may rightly prevent the counsel for the defense from arguing the constitutionality of a law to the jury.-' The practice of counsel in presenting their views of the law to the jury is subject to a correction afterward, when the court gives instruction to the jury ; but a court can generally interfere and stop a counsel in an argument of law to the jury when its own opinion is fixed, and in such case it seems that it may interfere to the extent of refusing to allow any argument at all.2 In civil cases counsel have a right to present their views of the law so as to discuss the facts intelligently to the jury.^ Argu- ments should be restricted to a discussion of the facts of the case, and the conclusions legitimately deduclble from the law ap- plicable to them.* In the latitude allowed to counsel, courts may impose some reasonable restraints upon the address to the jury. It has been held that, even though the jury are the judges of the law in criminal cases, the court may refuse to allow counsel to read law- books to the jury.^ ' Still, it is preferable in such cases to err on the side of liberality ; and restrictions which do not leave to counsel, who are apparently acting in good faith, such reasona- ble time ■ and opportunity as they may deem necessary for pre- senting their client's case fully, may be so far erroneous as to warrant setting aside a verdict of guilty.^ The right of counsel to address the jury on questions of law in criminal cases, is still in dispute. If by the local law the jury are the judges both of law and fact, there appears no good reason why counsel should not be allowed to address them upon the law." But the contrary is held in Maryland,^ where counsel is not allowed to argue the 1 Proffatt on Trial by Jury, sec. 253; Davenport v. Commonwealth, 1 Leigh, 588; Delaplane v. Crenshaw, 15 Gratt, 457; Franliilin v. State, 12 Md. 236. 2 Eobinson v. Adltins, 19 Ga. 398; Howell i<. Commonwealth, 5 Gratt. 664. 3 MoMath V. The State, 55 Ga. 303; Warmock v. State, 56 Ga. 503; Kansone v. Christian, Ibid. 353. * Thompson v. State, 43 Tex. 268. 6 Murphy v. State, 6 Ind. 490. See Lynch v. State, 9 Ind. 541; Phoenix Ins. Co. V. Allen, 11 Mich. 501. 6 People V. Keenan, 13 Cal. 581. 'Lynch v. State, 9 Ind. 541; Murphy v. State, 6 Ind. 490. See Trial of Col. Lilburne in 1649, 4 How. St. Tr. 8 Franklin v. State, 12 Md. 236. See also United States v. Callendar, Whart. St. Tr. 688. 214 PRIVILEGES AND EXEMPTIONS. § 114 constitutionality of a statute to the jury ; and the constitution, in making the jury judges of the law as well as of the facts, does not empower them to decide a statute invalid. In Massa- chusetts, where, as in other localities, the jury is supposed to re- ceive the law from the court, it is nevertheless held that counsel has a right to address them upon the law.^ It is often the habit of counsel to read extracts from authori- ties to the jury. There are times when a court may rightfully deny the privilege, as where a counsel proposed to read to the jury an adjudication by the highest court of another State, rul- ing that a statute, similar to that upon which the indictment was founded, was contrary to the constitution of the State.^ The mat- ter seems to be in the discretion of the court, and it may refuse to allow an unnecessary consumption of time.^ The general rule appears to be to permit extracts from text- books to be read in argument by way of illustration merely. The court, however, should instruct the jury that such extracts are not evidence. When it deems the doctrine erroneous, it is to so instruct the jury. It is said in a California case that the " practice of allowing counsel, in either a civil or a criminal ac- tion, to read law to the jury, is objectionable, and ought not to be tolerated. There are cases, however, in which it is permis- sible for counsel, by way of illustration, to read to the jury re- ported cases, or extracts from text-books, subject to the sound discretion of the court, whose duty it is to check promptly any effort on the part of counsel to disregard the instructions, or to take the law of the case from the books rather than from the court." * The privilege of argument should not be abused ; but consid- erable latitude is generally allowed, both at the English common law and in the American courts.^ 1 Commonwealth v. Porter, 10 Met. 263; Commonwealth i'. Austin, 7 Gray, 51. 2 Commonwealth v. Murphy, 10 Gray, 1; Commonwealth v. Porter, 10 Met. 63; Lloyd v. Hannibal &c. R. R. Co. 53 Mo. 51i. Maytield v. Cotton, 37 Tex. 229. * Proffatt on Trial by Jury, sec. 251; People v. Anderson, il Cal. 65; Fuller v. Talbot, 23 111. 357; Sprague ». Craig, 51 111. 28S: Harvey v. State. iO Ind. 516; Voe V. People, 49 111. 410; Cory /■. Silcox, 6 Ind. 39; Ivenyou v. Sutherland, 3 Gilm. 99; Legg v. Drake, 1 Ohio St. 280. 6 McNobb V. Lockhart, 18 Ga. 507. §§ 115-16 J,^RIVILEGES AND EXEMPTIONS. 215: § 115. Limiting time of argument. — It is the frequent practice of the courts to prescribe, in civil cases, and in crim- inal trials for minor offenses, the length of time a counsel shall take up in argument. The exercise of this discretion is sup- ported. Yet the authority of the court must be to some extent circumscribed, otherwise it might be so exercised as to abridge too much the privilege of counsel in argument. In a slander case, the court has limited the arg-ument to an^ hour and a half on one side and an hour on the other, and on appeal this was held no abuse of discretion. ^ But in graver charges, for higher offenses, the action of the court will be more jealousljr watched, as it is a constitutional right to have counsel argue to the jury. It was therefore held, in the case of a charge for an assault with intent to murder, and where the coun- sel vi'as limited to forty minutes in the argument to the jury, that this was error, in view of his protest that he could not do justice to his client in that space of time.^ In a trial for shoot- ing with intent to kill, a limitation of the argument for the de- fense to five hours has been sustained.^ In a California case, the defendant was tried for a capital offense, and his counsel was restricted in his argument to one hour and a half. This was held, on appeal, to be an improper restriction, and the de- cision was placed on constitutional grounds, inasmuch as such action deprived the prisoner of the opportunity of a full de- fense, which was his constitutional right. A late decision in North Carolina, in a case of a charge for murder, where an hour and a half was fixed, and the restriction sustained, is probably not law.^ The refusal of the court to permit counsel to pro- ceed in addressing the jury is not error, unless excepted to.^ § 116. Responsibility of counsel in argument. — As long as counsel confine themselves to the issues, they are privileged iProffatt on Trial by Jury, sec. 25i; Musselman o. Pratt, 44 Ind. 126; Dob- bins V. Oswalt, 20 Ark. 619; Preligh v. Ames, 31 Mu. 253; State v. Page, 21 JIo. 257; Lyncb v. State, 8 Ind. 541; Wood's Case, 7 Leigh, 743, 2 Hunt V. State, 49 Ga. 255. "Weaver v. State, 24 Ohio N. S. 584. ^Proffatton Trial by Jury, see. 254; People v. Keenan, 13 Gal. 581; State v. Collins, 70 N. C. 241. 6 Wilkins v. Anderson, .11 Pa. 399. 216 PRIVILEGES AND EXEMPTIONS. § HT to comment upon individuals without being liable in an action against them. Words, either spoken or written, in a legal pro ceeding, they being pertinent and material to the controversy, are privileged. This is the general rule,i but counsel cannot go outside of the case and make slanderous attacks upon a party. If he does, he is no more privileged than any other person, and is liable. An attorney in defending his client from a charge of assault in turning out the plaintiff from certain premises in which he had agreed to sell wine under agreement with a certain party, stated that that party had sufficient reasons for determining the agreement, and that he had been plundered by the plaintiff to a friffhtf ul extent. This was held a statement connected with the transaction, and an inference from the facts, and was privi- leged.2 And so, where a party was alleged to have kept a sum 'of money, which by his contract he ought not to have kept, counsel used the language, " he has defrauded us," this was held privileged.^ The subject has been already discussed in a pre- ceding section while considering the general privilege of coun- sel in argument. § 117. Publication of argument. — There is, however, a well-defined difference between the rules of law which protect commiinications, because of the occasion on which they are made and the duty resting upon the person making them, and those rules which concern the spreading before the world the same conimunications. It does not follow, because a counsel may freely speak in court as he believes, or is instructed, that there- fore he may publish his speech through the public press. The privilege in court is necessary to the complete discharge of his iProffatt on Trial by Jury, sec. 255; Garr r. Selden, 4 X. Y. 91; Lea v. "White, i Sneed, 111; Jennings v. Paine, i Wis. 358; Parker v. ^liteliell, ol Barb. 469; Hoar V. Wood, 3 Met. 193; Hodgson v. Scarlett, 1 Barn, c^- Aid. 232: ilcMillan v. Birch, 1 Blnn. 178; Brook rj. Montague, Cro. Jac, 90. 2 JIackey v. Ford, 5 Hurl. & N. 792. 3 Xeedhamu. Dowling, 15 Law J. Com. P. 9, See ante, § 110. Where a per- son, appearing for himself, applied to the court for an extension of time to file a transcript on appeal, and in the application went outside of the reason for asking the order, which was an accident to himself that disabled him from pre- paring the transcrii^t, and charged his attorney in the court below with collu- sion with the adverse attorney, this was held not privileged, and was also held to be libelous per se. (Wyatt v. Buell, 47 Cal. 024.) § 117 PRIVILEGES ANT) EXEMPTIONS. 217 duty to his client, but when the suit is ended, that duty is dis- charged, and he is not called upon to appeal from the court and the jury to the general public. Still, it seems settled that a fair and impartial account of judicial proceedings which have not been ex parte, but in the hearing of both parties, is, generally speaking, a justifiable publication. ^ A further discussion, how- ever, of this subject, would lead us too far into the law of libel, to which the matter properly belongs. iHoare v. Silverlock, 9 Com. B. 20; Lewis v. Levy, El, Bl. & El. 53T; Eyalls ir. Leader, Law E. 1 Ex. 296; Stanley v. "Webb, 4 Sand. 21; Cincinnati Gaz. Co. V. Timberlake, 10 Ohio N. S. 548. See Eexw. Carlisle, 3 Barn. & Aid. 167; Eex V. Creavey, 1 Maule. & S. 273, as to indecent and blaspbemons publications. See also Cooley's Const. Lim. *449 et seq. As to publication of speech of client, reflecting on counsel, see Sandford v. Bennett, 24 N. Y. 20. And upon the gen- eral subject, Townshend on Libel and Slander, 3rd ed. sec. 229, and case.s cited; EdsalljJ. Brooks, 17 Abb. Pr. 227; 26 How. Pr. 426. 218 DISABILITIES OF ATTORNEYS. §§ 118-19 CHAPTER VI. DISABILITIES OP ATTORNEYS BY. REASON OP THEIR PROPESSION. § 118. Disatiilitles of attorneys. § 119. Restrictions as to becoming bail or surety. § 120. As to appearing for both parties, or on opposite sides. § 121. As to purchasing choses in action or demands for suit. § 122. As to acting in other capacities. § 123. As to acting for unqualified persons, and permitting others to use their names. § 124. When counsel in a cause may be a witness. § 125. Competency as a witness generally. § 126. Opinions as an expert on matters connected with his specialty. § 118. Disabilities of attorneys. — Among the restrictions placed upon the attorney, by reason of his profession and as an officer of the court, are the prohibitions against becoming se- curity, appearing for both parties, or upon opposite sides, pur- chasing choses in action, acting in other capacities, acting for unqualified persons, permitting others to use his name, and, under some circumstances, from acting as a witness. § 119. Becoming bail or surety. — From motives of public policy, and to prevent attorneys having an undue personal in- terest in litigation, they are usually prevented, either by statute, or by rule of court, or on general principles, from becoming bail or surety in causes in which they are engaged, or even in any causes in the courts of which they are attorneys. If they be- come so, in violation of whatever provisions exist in that regard, they are liable to be considered as having placed themselves in contempt of court, and may be so dealt with.^ It has been the general rule in England, since 1654, that attor- 1 Love tJ. Sheffelin, 7 Fla. 40; Gilbank v. Stephenson, 30 ^Vis. 155; Massie c. Mann, 17 Iowa, 131. See Hoffman v. Rowley, 13 Abb. Pr. 398: Branger v. But- terick, 30 Wis. 153; Dillon v. Watkins, 2 Spear, 445; Ryckman v. Coleman, 13 Abb. Pr. 398; JNIiles v, Clarke, 4 Bosw. (i32. In some States, however, the rule has not obtained. See Abbott v. Zeigler. 9 Ind. 511; "Walker «. Holmes, 22 Wend. 614; Church v. Druiuiuond, 7 Irtd. 17. § 119 DISABILITIES OF ATTORNEYS; 219 neys cannot become bail, and this rule, with some variations, has been extensively adopted in America.^ One other reason of the rule is that if an attorney was allowed to become bail for a cli- ent, in causes in which he was engaged, he would be subject to importunities with which he would perhaps be in a measure constrained to comply, though he might deem it imprudent to do so. The rule has been considered applicable to every case in which a party in the prosecution or defense of a suit is re- quired to give bail or security of any kind,^ but still he is some- times allowed by statute to become security for costs. ^ The disqualification of an attorney as to bail is not usually confined to cases in which he is attorney, but is general in its operation ; * but still he must be a practicing attorney, and so where he had not practiced for six years he was considered com- petent.^ The bail, however, cannot be treated as a nullity, and an attorney, if he signs, is liable on his recognizance, not- withstanding the prohibition, though an infringement of the rule may subject him to penalties.^ The rule extends to the at- torney's clerks, even though the clerk be not in the service of the party's attorney." But there appears to be no objection to an attorney's clerk becoming bail for his employer,^ although a conveyancer engaged in partnership with an attorney, and shar- ing in the general profits of the business of the office, though not practicing himself, was not allowed to justify as bail.^ For the same general reason on which the rule is founded, and to prevent evasions of it, it has been decided that bail who have been indemnified by an attorney are not competent, whether the indemnity be in writing or not.^" But if one becomes bail merely 1 Mann v. Nottage, 1 Younge & J. o67n; Coster v. Watson, 15 Johns, S35. 2 Craig V. Scott, 1 Wend. 35. " Walker v. Holmes, 22 Wend. 614. * Anon. 1 Chit. llin. 6 King V. Sherlfe, 2 East, 182; Bell v. Gate, 1 Taunt. 162. 8 Ibid.; Ifoxall v. Bowerman, 2 Bast, 182; Banter v. Levi, 1 Chitt. 713; Harper V. Tahomden, 1 Chit. 714. 'Anon. Lofft, 263, 280; Boulogne v. Vautrin, Gowp. 828; S. C. 2 Doug. 467n; Thompson v. Roubell, 2 Doug. 467»; Laing v. Cundale, 1 H. Black. 76; Cornish V. Ross, 2 H. Black. 350; Stoneham v. Pink, 3 Price, 263; Fenton v. Ruggles, 1 Bos. & P. 356; Reditt). Broomliead, 2 Bos. & P. 564. 8 Dixon V. Edwards, 2 Anstr. 356. 9 V. Yates, 1 Dowl. & R. 9. i» Greensil v. Hopley, 1 Bos. & P. 103; Capon w. Dillamore, 1 Bing. 423; S. C. 8 Moore, 516; Anon. 1 Dowl. O. S. 1. 220 DISABILITIES OF ATTORNEYS. § 120 at the request of an attorney, not being indemnified by him, nor expecting to be, he is of course competent.^ The rule as to bail in courts of law was never adopted in the courts of chancery in respect to security required by statute, and it has been held, that a solicitor might be surety upon a bond for costs, and the disability limited to bail for the appearance of the party arrested.^ § 120. Acting on both sides. — Even by the consent of par- ties, an attorney is not permitted to act on both sides of a cause. Attorneys in England have, in pursuance of the summary juris- diction of the court, been committed to the Fleet and their names stricken from the rolls for accepting a retainer on both sides.^ In other cases, the court has, on motion, set aside pro- ceedings, and imposed the costs upon the attorney.* " An attorney," said Chief Justice Hobart, " oweth to his client fidelity, gecrecy, diligence, and skill, and cannot take a re- ward on the other side." ^ Where an attorney has been re- tained by one, he cannot recover for professional services ren- dered in the same matter to another who is antagonistic, nor can he enforce a contract based on such assistance to an opposite party.^ Where it was shown that an attorney who was preparing to assist in the prosecution had been employed by the defendant in a criminal cause to make his defense, and that the latter had disclosed to such attorney the facts in the cause and the evi- dence for his defense, the attorney was very properly not al- lowed to assist in the prosecution, the court observing that to 1 Hunt V. Blaquiere, 4 Bing, 588. See, also, upon the general subject, Bell v. Gate, 1 Taunt. 162; Cakish w. Koss, Ibid. 164ji; Hill v. Thompson, 7 Moore, 403; Jackson v. Trinder, 2 W. Black. 1180. - Willmont v. Meserole, 48 How. Pr. 430; Jones v. Savage, 10 Wend. 621: Si- gourney v. Waddle, 9 Paige, 381; Walker v. Holmes, 22 Wend. 614; Mickle- thwaite v. Rhodes, 4 Sand. Ch, 434; Eyckman c. Coleman, 13 .Vbb. Pr. 598. 3 Anon. 7 Mod. 47; 2 Bing. 423; Mason's Case, 1 Freem. 74. ^ Berry v. Jenkins, 3 Bing. 423. As an attorney cannot act on both sides pro- fessionally, if he has been employed by a wife to procure a separation from her husband, he cannot engage to act for the husband as his attorney in preventing it. (Herrick v. Cotley, .30 How. Pr. 208; S. C. 1 Daly, 512.) 6 Herrick v. Cotley, 30 How. Pr. 208; S. C. 1 Daly, 512; Vardley v. EUill, Hob. 8; Shire «. King, Yel. 32. » Herrick v. Cotley, 30 How. 208; 1 Daly, 512. § 121 DISABILITIES OF ATTORNEYS. 221 sanction such a course would be to defeat the very purpose for which courts were organized, viz., the administration of jus- tice. ^ In another case the court found it necessary to remark that an attorney is never allowed to change sides in the same suit, though at different trials, or receive fees of two adversaries in one cause ; but where an attorney has, in the course of other business, obtained a knowledge of matters connected with the suit in question, courts will not in general on that account re- strain an attorney from acting against the party through whose business he obtained such knowledge.^ But a counsellor ap- pointed to perform the duties of prosecuting officer in the latter's absence cannot act as such in a criminal cause depending upon the same state of facts as a civil action in which he has been previously employed, and if he is allowed to so conduct the prosecution in the face of the defendant's objection, it is error. ^ § 121. Buying demands for suit. — To prevent undue per- sonal interest, and in restraint of unnecessary litigation, attor- neys are not generally at liberty to buy demands for suit or chosefe in action. A further object of the restriction was origi- nally to prevent attorneys from purchasing debts or other things in action for the purpose of obtaining costs by prosecuting them. The rule, however, is not intended to prevent a purchase for the honest purpose of protecting some other important right of the assio-nee."* In some States, it has even been made a criminal offense for an attorney to buy any chose in action for the pur- pose of bringing suit thereon. The rule applies to equitable suits as well as to suits at law.^ It extends to purchases made at judicial sales under the direction of an officer of the court.*^ Wlierever the restriction has been incorporated into the statu- 1 Wilson V. State, 16 Ind. 392; Gauldeii v. Georgia, 11 Ga, 47. 2 Price V. Company, 18 Ind. 137; Henry v. Raiman, 25 Pa. .354; Valentine v. Stewart, 15 Cal. 387; Sherwood v. Saratoga R. E. Co. 15 Barb. 650. 3 Commonwealth «. Gibbs, 4 Gray. 146. * Baldwin v. Latson, 2 Barb. Cli. 306; Van Rensselaer v. Sherife, 1 Cowen, 443; Hall V. Bartlett, 9 Barb. 297; Brotlierson v. Consalus, 26 How, Pr. 213; AVarren V. Paine, 3 Barb. Oh. 213; Mann y. Fairchild, 3 Abb. X. Y. App. 152; 14 Barb. 548, overruling S. C. 5 Barb. 108; Ramsey c. Brie R. It. Co. 8 Abb. Pr. 174. s Cases cited supra. s Mann r. Faircliild, supra. See, as to prosecuting in justices' courts, Goodell »,. People, 5 Parker Cr. C. 206. V. 222 DISABILITIES OF ATTORNEYS. § 121 tory law, such statutes have usually been declared constitutional, and even in criminal cases courts have gone so far as to hold that the intent with which the attorney buys the note or thing in action need not be alleged in the indictment, nor need it be averred that a prosecution has been commenced on it. The act of buying constitutes the offense ; and on this being shown, it lies with the defendant to make out that he is within any excep- tion or proviso in the statute.^ The date, amount, time when due, etc., with other circumstances going to the question of in- tent, have been held immaterial^ to be alleged. While the relation of attoi'ney and client continues, the court will carefully scrutinize the dealing* and contracts between them, and guard the client's rights against every attempt by the attor- ney to secure an advantage to himself at the expense of the cli- ent. Nor is it necessary in such case for the client to show act- ual, or, as it is sometimes called, active fraud, in order to obtain relief ; but the law will presume in his favor so soon as the confi- dential relation is shown to have existed at the time of the trans- action complained of. This rule has its foundation on principles of public policy, and is adhered to by the courts with severity. If the attorney purchases the subject-matter in litigation from liis client's adversary in the suit, or any interest therein, his cli- ent will be entitled to the advantages growing out of the pur- chase at his election. The attorney will be held to be the agent of his client for the purpose of effecting the purchase, if the cli- ent chooses to hold him to that position. An attorney will not be permitted to buy and hold for him- self against his former client a right, claim, or demand, as to which he had been the adviser of the latter ; for it will be pre- sumed that he acquired information in regard to it, under the confidence of his former relation, or in the exercise of his dutv as attorney and counsel. In such case, an obligation remains to 1 111 some States, this disability does iiot exist. Purchase of an interest in property by au attorney, made after judgment has been obtained, is not forbidden by tlie laws of Louisiana ; and where money is borrowed to make the purchase, the lender of the money is estopped from plead- ing illegality in the purcliase, And thus retaining the property which had been conveyed to himself as security for the loan. (McMicken v. Perrin, IS How. 507. ) ■^ People V. Walbridge, 3 Wend. 120; 6 Cowen, 512. But see Hall v. Bartlett, 9 Barb. 297. § 121 DISABILITIES OF .ATTORNEYS. 223 be faithful to the trust reposed in him, notwithstanding his em- ployment may have terminated ; and it is not in his power to relieve himself of a disability which he voluntarily assumed, and which became permanent as soon as it attached. It is not an answer to say that the demand was already fixed and determ- ined as a legal obligation, that the claim was open alike to all purchasers, and that the party is not injured in being compelled to pay a just and legal debt. But a principle of public policy and natural equity intervenes, and denounces the act as unfair, because accomplished under circumstances of temptation which might lead to violations of just obligations and duties. The doctrine is founded in a desire of the law to apply the principle of preventive justice, so as to shut out the inducement to perpe- trate a wrong, and by disarming parties of all legal sanction and protection for their acts, to suppress the temptation.^ An attorney, it seems, has a right to make a purchase of judgments for the purpose of issuing executions and collecting the debts, notwithstanding a statute prohibiting attorneys from buying choses in action, with the intent and for the purpose of bringing suits thereon. The policy of the law does not embrace such a case.^ The defense is as effectual in equity as in actions at law. It is held that the disability continues as long as the reason for it exists.^ Advances, however, made by an attorney to his client from motives of humanity, after the commencement of the suit, are not a violation of the rule, when made in consideration of a security for the payment of money being left with an attorney for collection.* An agreement to have one-third of the demand when collected as compensation, is not within the prohibition.^ Whenever a defendant sets up the defense that the demand on which the action is founded has been bought and sold, or received for prosecution by an attorney, contrary to the statute or the policy of the law, it is a question for the court, and not 1 Broth erson v. Consalus, 2H How. Pr. 213. ^ Ibid. ; Warren v. Paine, 3 Barb. Ch. 630. 8 Brcjtherson v. Consalus, 26 How. Pr. 213; Warren v. Paine, 3 Barb. Cli. 630; Henry v. Kaimim, 25 Pa. 354; 8 Claris & F. 657; Galbraith v. Elder, 8 Watts, 81. 4 Bristol V. Dann, 12 Wend. 142. 6 Hall «c Gird, 7 Hill, 586. 224 DISABILITIES OF ATTORNEYS. §§ 122-3 the jury. If determined against the plaintiff, he must be non- suited ; if in his favor, the jury must be instructed accordingly.^ § 122. Acting in other capacities. — In all legal proceed- ings, and at every stage of a cause, a court scrupulously guards against intrusting the execution of its mandates to persons hav- ing any interest in the cause. The law will not tempt those hav- ing an interest in any way to abuse its process for the purpose of promoting selfish ends. So a solicitor in a cause has been held disabled from acting as a special master, to execute a de- cree in the cause ; ^ nor can an attorney make a writ and in- dorse his name upon it as attorney for the plaintiff, and also sign it as justice of the peace.^ § 123. Acting for unqualified persons — Permitting oth- ers to use name of attorney. — In England, by 6 and 7 Vict., chap. 73,* if any attorney or solicitor willfully and knowingly acts as agent in any action or suit in any court of law or equity, or matter in bankruptcy, for any person not duly qualified to act as such, or permits his name to be made use of in such action upon the account or for the profit of any unqualified per- son, or sends any process to such unqualified person, or does any other act thereby to enable such unqualified person to appear, act, or practice, in any respect, as an attorney or solicitor in any suit at law or in equity, knowing such person not to be qualified, and complaint be made in a summary way to any of the supe- rior courts wherein the attorney is admitted, and proof is made upon oath to the satisfaction of the court that the attorney has so willfully and knowingly offended, he is to be stricken from lOrcutt (■. Pettit, 4 Den. 233; Roe c. Jerome, IS Conn, 138; McFailon's Execu- tor V. Martin, ;'< Har. & McH. 153. See Mann v. Faircliild, 3 Abb. X. T. App. 152; Brothersont!. Consalus, 2(; How. Pr. 213; \'an Rensselaer v. Sheriif, 1 Cowcu, 443; Baldwin v. Latson, 2 Barb. Cli. 306. 2 White V. Haffaker, 27 111. 34!i. See Taylor r. Bank, 14 Ala. U33; Spiuks c. Davis, 32 Miss. 152. 3 Ingraham v. Leland, 19 Vt. 304. * The repealed see. 11 of 22 Geo. II, chap. 41), was of similar import. See, also, 2 Geo. II, chap. 23, sec. 17; Tidd's Pr. 74; In re Jackson, 1 Barn ^: C. 270; Tench v. Roberts, Madd. 145; In re Clarke, 3 Dowl. & R. 2U0; In re Isaacson, Clarke & Brookes, 8 Moore, 214-322; Ex parte Watton, 5 Barn. ^: Aid. 824. See, also. In re Garbutt, 9 Moore 157; 2 Bing. 74; In re Jacques, 2 Dowl. & K. 64 ; Williams «. Jones, 5 Barn. & C. 108. § 124 DISABILITIES OF ATTORNEYS. 225 the roll and forever after disabled from practicing, and the court may also commit the unqualified person to prison without bail for any term not exceeding one year, and by the 23 and 24 Vict., chap. 127, sec. 26, a person who acts as attorney con- trary to the above statute, or who in his name, or in the name of any other person, in any wise acts as a proctor in or with re- spect to any pi-oceeding in the court of probate, or in the court of divorce and matrimonial causes, without being duly qualified so to act, will be deemed guilty of a contempt of court and inca- pable of maintaining any action or suit for fees or disbursements, and in addition to other penalties and forfeitures to which he may be subject, he forfeits the sum of ^50, recoverable by ac- tion to be brought with the sanction of the attorney-general in the name of the incorporated law society. The mischief ao-ainst which these statutes are aimed is the practice of acting as an attorney or solicitor without being duly qualified, and the offense prohibited is not the mere permitting the name to be made use of " upon the account or for the profit of an unqualified person," but doing it in such a manner as thereby to enable such unqualified jDerson to appear, act, or prac- tice in any suit at law or in equity. ^ An attorney, however, admitted in one of the superior courts according to the 6 and 7 Vict., chap. 73, may iiractice in any other court in the name of an attorney of the latter.^ In many of the United States of America, statutes of similar import exist, with more, or less se- vere penalties. § 124. When counsel in a case may be witnesses. — ^" It has been doubted," says Vf harton, in his recent admirable work on the law of evidence in civil issues, " whether a lawyer, who in any capacity has addressed, a jury in a cause, may be per- mitted to testify in the same cause as a witness;^ though, as this might, in extraordinary cases, work injustice, the exclusion should be confined to those instances in which the attempt is 1 Scott V. Miller, Jolms. 220; 5 Jur. N". S. 858; 28 L. J. Ch. 584. 2 Hulls v. Lee, 11 Jur. 891j 10 Q. B. 940. 3 Wharton on Evidence, sec. 420; Stones v. Byron, 9 Dowl. & L. 393; Deane v. Pack-wood, Ibid. 395; Carrington v. Holabird, 17 Conn. 530; Quarlesr. ^\'ald^on, 20 Ala, an. A. & C— 15. 226 DISABILITIES OF ATTORNEYS. § 124 recklessly and unnecessarily to unite .the functions of counsel and witness. 1 The mere fact that the case has been opened by an attorney who has previously cross-examined witnesses on the other side, does not make him incompetent as a witness for his client.^ Where, however, counsel thus become witnesses, it may be a proper exercise of the discretion of the court to pro- hibit them from subsequently addressing the jury on the case thus made up ; and the testifying of the counsel should be confined to extreme cases, as to which there is no other proof."' But, as a general rule, a lawyer is a comjjetent witness in a case he is trying or directing."* In Follansbee v. Walker, 72 Pa. 280, Eead, C. J., said: " On the trial of this cause, A. S. Foster, Esq., was offered as a witness on the part of the defense, objected to by the plaintiff's counsel, and rejected by the lower court for the following rea- *son : ' Mr. Foster, as attorney for the defendant Follansbee, opened the case for him to the jury and examined the witnesses for said defendant, and the court on this ground excludes him as a witness.' This is assigned for error. " In Frear v. Drinker, 8 Barr. 521, Mr. Justice Rogers says : ' It is also contended an attorney is not a competent witness for his client. In England, it has been lately ruled that an attor- ney is not to give evidence under certain circumstances.' He cites two cases before Mr. Justice Patterson and Mr. Justice Erie, and he says : ' The furthest the court has yet gone is to discourage the practice of acting in the double capacity of at- torney and witness, but there is nothing to prohibit an attorney from being a witness for his client, when he does not address the jury. It is said, and I agree, that it is a highly indecent practice for an attorney to cross-examine witnesses, address the 1 state ». Cook, 23 La. An. :M7; Tilton v. Beecher, Pampli. Eep. 2 Follansbee v. Walker, 72 Pa. 228. sCobbettu. Hudson, 1 El. & B. 11; Eoss v. De Moss, io 111. HI; Madden t. Farmer, 7 La. An. 580; Boissy v. Lacon, 10 Ibid. 29. Under Georgia stature ex- cluding attorneys from testifying for their clients, see Cliurchill c. Corker, 2o Ga. 479. * Potter V. Ware, 1 CusU. 510; Tullock i'. Cunningham, 1 Cowen, 256; Folly c. Smith, 7 Halst. i:i9; Bell v. Bell, 12 Pa. 235; Follansbee i\ Walker, 72 Pa. iW; Morgan v. Roberta, 38 111. 65 ; Abbott v. Striblen, 6 Iowa, lsi7 ; State c. Woodside, 9 Ired. 49C; Morrow v. Parkman, 14 Ala. 769; Grant's Succession, 14 La. An. 795. § 124 DISABILITIES OF ATTOENEYS. 227 jury, and give evidence himself to contradict the witnesses. It is a practice which, as 'far as possible, should be discountenanced by courts and counsel. But these cases are not open to this ob- jection, because it appears, negatively, that the counsel did not address the jury.' "It is sometimes indispensable that an attorney, to prevent in- justice, should give evidence for his client. In the earlier cases in Pennsylvania, the objection to the examination of the attor- ney in the cause was his interest in it, as in the case of Miles v. O'Hara, 1 Serg. & R. 32, in 1814. In the first case, (Newman V. Bradley, 1 Dallas, 240, in the year 1788) Howell, who was of counsel for the plaintiff, gave the chief evidence to support the action, and he and Tod argued the cause before the jury, and there was a verdict for the plaintiff. When Howell offered himself as a witness, Levi objected that he was interested, inas- much as his judgment fee depended on his success in the cause. But the objection was overruled by the court. The two English cases cited by Judge Rogers have since been overruled. Pitt Taylor, in the second volume of his Treatise on the Law of Evidence, p. 1170, sec. 1240, 4th ed., thus states the law : 'The judges at nisi prius were atone time inclined to regard as incompetent to testify all persons, whether counsel, attorneys, or parties, who, being engaged in a cause, had actually addressed the jury on behalf of that side upon which they were afterward called to give evidence. Further investigation of the subject, however, has led to a judicial acknowledgment that no such practice exists.' The authority for this, Corbett v. Hudson, 22 Law J. Q. B. 11, 1852, the judgment of the court, of which Mr. Justice Erie was one, being delivered by Lord Campbell, C.J. " The question may, therefore, be considered as settled in En- gland and Pennsylvania, and also in Massachusetts. (Potter v. Inhabitants of Ware, 1 Cush. 519.) There was, therefore, error in holding Mr. Foster was not a competent witness." ^ 1 FoUansbee v. Walker, 72 Penn, 230, per Read, C. J. AVharton on Evidence, sec. 4;0, note 5. By the Roman law, no attorney is permitted to testify as to a matter in wliich he is professionally employed, and this prohibition includes all contidential professional agents. (Ibid.) See L. 2.'5, D. 22, 5; Heffter, Civil Pro- cedure, 203. 228 DISABILITIES OF ATTORNEYS. §§ 125-6 The attorney is not disqualified from being a witness, even though his judgment fee depends upon his success, or if he ex- pects a larger fee if his client succeeds.^ § 125. Competency as a witness generally. — Even where the rule was that a person or a party was excluded as a witness on the ground of interest, an attorney having no contingent in- terest or share in the result of the suit was almost invariably permitted to testify in favor of his client. When such testi- mony was relevant to the issue, his mere professional interest in the result of the suit was not sufficient to prevent him from tes- tifying.^ The subject of testimony against the client, or with- out his consent, will fall under the head of " privileged commu- nications," and will form the subject of a separate chapter, when we come to speak of the relation of attorney and client. § 126. Opinions as an expert. — A lawyer may give opin- ions as an expert on matters connected with his specialty. Law- yers are admissible as witnesses to prove the laws of their pro- fession. On the question of fees, for instance, a lawyer is competent to prove the value of the services sued for,'^ and also to prove the practice of courts.* 1 Little ('. McKeon, 1 Sand. 607; Eobinson v. Danchy, 3 Barb. 20; Frear v. Drinker, 8 Pa. 520; Hall v. Reufro, 3 Met. (Ky.) 51; Newman v. Bradley, 1 Uall. 241; Bouldeu v. Hebel, 17 Serg. & R. 312; Miles r. O'Hara, 1 Serg. & E. 32: Slo- cum V. Newby, 1 Murph. 423. See, as to practice of attorneys testifying or mak- ing affidavit for his client being objectionable. Little v. McKeon, 1 Sand. G07 ; Spencer v. Kinnard, 12 Tex. 180; Stratton i>. Henderson, 26 111. 68. 2Pcttert). Inhabitants of Ware, 1 Gush. 519; Jones v. Bolton, 12 Pa. 339; Baker V. Arnold, 1 Cart. 258; Linton v. Commonwealth, 46 Pa. 294; and numerous other early cases, which it would subserve no useful purpose to cite, even the restric- tion on the ground of interest having been very generally removed by statute. 3 Wharton on Evidence, sec. 442; Covey v. Campbell, 52 Ind. 157 ; Allis v. Day, 14 Minn. 516; Ottowa v. Parkinson, 14 Kan. 159. •• Ibid. ; Mowry v. Chase, 100 Mass. 79. § 127 LIABILITY TO THIRD PARTIES. "229 CHAPTER VII. ATTORNEY'S LIABlLI'tY TO THIRD PARTIES. § 127. General liability to tblrd persons, § 128. Liability for fees and costs. § 129. Liability for indorsement of the writ. § 130. Liability on undertakings. § 131. For excess of authority. § 132. In cases of malpractice. § 133. Liability for acts done — Malicious prosecution by attorney. § 134. Joint liability of attorney and client. § 135. Liability of third persons to attorneys. § 136. As for slander of attorneys. § 1.37. Expressions held slanderous. § 138. Expressions held not slanderous. § 139. Other expressions. § 140. The evidence. § 127. General liability to third persons. — Ordinarily, attorneys at law, like other agents, are exempt from liability to third parties for what they do in the name and on behalf of their principals ; but, like other agents, they may render them- selves personally liable to third parties in various ways, as by acting without authority, or independently of their clients, or in excess of authority, practicing fraud or collusion, or acting under illegal, informal, or irregular proceedings — and the same rules appear to apply in cases both of contracts and of torts. They may be liable for entering an unauthorized appearance, and for assuming obligations on their own account.^ In cases of con- tract, "the attorney," says Lord Abinger,^ "is known merely as the agent — the attorney of the principal — and is directed by the principal himself. The agent, acting for and on the part of the 1 Co. Litt. 52a ; Wharton on Agency, sees. 612, 613; Bell v. -Mason, 10 Vt. 509; Eesspass v. Morton, Hardin, 226; Hazelrigg v. Brenton, 2 Duval, 525; Ford «. Williams, 13 N. Y. 597; Jones v. Wolcott, 2 Allen, 247; Coit v. Sheldon, 1 Tyler, 304; Smith v. Bowditch, 7 Pick. 138; jMunnikuyson v. Dorsett, 2 Har. & G. 374; Jenkins w. Fereday, Law R. 7 Com. P. 358; Field v. Gibbs, Peters G. U. 155; Johnson v. Ogilby, 3 P. Wms. 277. 2 Robins v. Bridge, 3 Mees. & W. 119. 230 LIABILITY TO THIRD PARTIES. § 127 principal, does not bind himself, unless he offers to do so by- express words ; he does not make himself liable for anything, unless it is for those charges which he is himself bound to pay, and for which he makes a charge." Lord Erskine states the law to the same effect :i "No rule of law is better ascertained, or stands upon a stronger foundation, than this — that where an agent names his principal, the princi- pal is responsible, not the agent; but for the application of that rule, the agent must' name his principal as the person to be responsible." Although attorneys may be liable for work bestowed on their clients' affairs, at their own express request, in diminution of the labor jjroperly devolving upon themselves, still they are not generally liable for labor performed merely for their clients' ad- vantage, and not their own, even though at their own express request. An attorney, for instance, is not personally liable to a witness, whom he subpoenas to give evidence in a cause, for his expenses of attendance,^ nor for his hotel bill while in attend- ance on the trial; 3 and it has even been held that an express promise by the attorney after the trial, to pay a witness a com- pensation for his loss of time, cannot be enforced either by action or a summary application to the court.* Nor is the attorney liable to the sheriff for his fees on an execution issued in the regular course of an action, in the absence of any special cir- cumstances showing that he had made himself personally liable.^ A person injured by an attorney appearing for him without authority has a remedy by action against the attorney,'^ and an action will He against an attorney for maliciouslv suing out pro- cess, and the attorney and his client may both be liable, as for illegally issuing a fi. fa.'' But an attorney is not liable, civilly, for ordering a lew on 1 Ex parte Hartop, 12 Ves. 352. 2 Eobinson v. Bridge, 3 Mees. & W. 11-t; 6 Dowl. 140; Sargeant v. Pettibone, 1 Aiken, 355. 8 Pendall v. STokes, 7 Scott, 6i7. * Bates V. Sturges, 6 Moore & S. 172. 5 Mayberry v. Mansfield, 16 Law J, Q. B. 102; Benson v. \Ylutfield, 4 JlcCord, 149. eSruitliu. Bowditcli, 7 Pick. 138; Coit v. Sheldon, 1 Tyler, 304; Muuuikuyson V. Dorsett, 2 Har. & Cr. 374. ' Burnap v. Marsh, 13 111. 535; Newberry v. Lee, 3 Hill, 523. § 128 LIABILITY TO THIRD PARTIES. 231 property, if he acts in good faith and on reasonable cause.^ To sustain an action against an attorney for acts done in the prosecution of his client's rights, it must be shown that such acts were malicious, and without foundation.^ Where an attorney procures money to be advanced by a third person, in the prose- cution of an action, without attempting to pledge the credit of his client therefor, the attorney alone is responsible to such third person.3 An attorney may also incur liability for costs. An attorney may be summarily compelled to perform a per- sonal undertaking, given by him in the course of an action ; and in the course of other transactions, an attorney may render himself liable to an action on an express undertaking or agree- ment in his own name, as to give up documents, to pay the costs on the compromise of a prosecution, and to pay the extra ex- penses in a proceeding incurred at his express request.* Some of the liabilities above mentioned will now be more specifically touched upon. / § 128. Attorney's liability for costs and fees. — The gen- eral rule is, that where either of the parties in a suit is made liable to the payment of costs, or has actually paid them, through the gross negligence, ignorance, or misbehavior of his attorney, the court will, on motion, order the attorney in the former case to pay the costs instead of his client, and in the latter to re- imburse him.^ An attorney is liable to pay the costs of sham pleas, though instructed by his client so to plead.^ But the court will not require the attorney to disclose the authority by which he pleads a sham plea." An attorney may, on retainer iHunt ij. Printup, 28 Ga. ^ilT. See Seaton «. Cordray, "Wright, 102; Ford v. Williams, 24 X. Y. 359; 13 N. Y. 577. ■^ W'igg V. Simonton, 12 Eich. 583. 3 Bell V. Mason, 10 \'t. 509. ■1 Foster v. Blakelock, 5 Barn. & C. 228; 8 D, & R. 48; Kendry c. Hodgson, 5 Esp. 228; Watson c. Murrell, 1 Car. & P. 307; Hall i,. Ashurst, 1 Car. & M, 714; 3 Tyrw. 420. See Iveson «. Corington, 1 Barn. & G. 100; Burrell c. Jones, 3 Barn. & Aid. 47. ^Neglectiny to appear. — If a solicitor for the plaintiff undertakes, though volun- tarily, to appear at a hearing, and afterward fails or refuses to. appear, the court may order him to pay the costs occasioned by his default. (16 Ves. 163; 17 Ibid. 130; 5 Madd. 21; Grinstead ?j. Grinstead, 1 Turn. & Ven, P. Ch. 308.) 6 Vincent v. Groome, 1 Chit. 182. See Johnston v. Alston, 1 Camp. 176. VMerrington v. A' Beckett, 1 Dowl. & R. 231; 2 Barn. & C. 81. 232 LIABILITY TO THIRD PARTIES. § 128 of his client, sue for a debt which he knows to be released, be- cause he does it only as servant to another in the way of his profession. 1 An attorney, guilty of many gross blunders, has been ordered to pay money on both sides.^ An attorney having undertaken to pay costs on a stay of proceedings, was held bound to do so, although his client died before the time for putting in bail had arrived.^ Where one is made lessor in ejectment with- out his authority, the plaintiff's attorney, and not he, is liable for the costs.* And the costs of an irregularity arising from the gross ignorance or negligence of the attorney will b'e charged, sometimes, upon him personally.^ An attorney has been held liable to the sheriff for fees on process delivered to him for execution.^ But he is not liable for the fees of a witness sumirroned to testify for his client, unless upon a sjDCcial promise to pay them. Under a Federal statute, if any attorney, proctor, or other person admitted to manage and conduct causes in a court of the United States, or of the Territories thereof, shall appear to have multijjlied the proceed- ings in any cause before the court so as to increase costs unrea- sonably and vexatiously, such person may be required, by order of court, to satisfy any excess of costs so incurred.' A solicitor is personally liable for the costs of correcting an irregular proceeding occasioned by his negligence or gross igno- rance, which is prejudicial to the rights of the adverse party : and if the costs are charged upon the client in the first instance, he may recover them in an action against the solicitor.^ So a counsel who signs a scandalous or impertinent pleading- is personally liable for the costs of proceedings to expunge the scandalous or impertinent matter, or have it stricken out; and an unsuccessful attempt to collect such costs from the party for 1 Anon. 1 Mod. 209. 2 White V. Washington, 1 Barnes, 302; 2 Ibid. 4; Glynn v. Kirby, 1 Strange, 402; Prac. Ca. K. B. 37. See 6 Mod. 106n. 3 Hillings V. Jones, 3 Bing. 70. See Ex parte Hughes, 5 Barn. & Aid. 482. ^ People V. Bradt, 6 Johns. 318, "Kane v. Van Vrankin, 5 Paige, 62; Ex jrarte Robbins, lio N, 0. 309. See Cush- man v. Brown, 6 Paige, 539; Powell /'. Kane, 5 Paige, 260; 2 Edw. 450. 6Birkbeck v. Stafford, 23 How. 236; S. C. 14 Abb. 285; Towle c. Hatch, 43 N. H. 270; Sargeant v. Pettibone, 1 Aiken, 365. ■j Act of July 22nd, 1813, sec. 3; 3 Stats, at L. 21. 8 Kane v. Van ^'rankin, 5 Paige, 62. § 128 LIABILITY TO THIRD PARTIES. 233 whom such pleading was put in, will not discharge the counsel from liability. Nor will the fact that the counsel signed the paper without fee or reward, and merely as the friend of another party, and at his request, and without reading the same, furnish any answer. One principal object in requiring the signature of counsel to a bill or answer is that the court may have the secur- ity of a counsellor's certificate that the pleading is not scandal- ous or impertinent. And it is improper for a counsellor to put his official signature to a pleading which he has never read, arid with the contents of which he is ignorant. If he puts his sig- nature to an answer without reward, as a mere act of friendship for the soli-citor, and the answer should contain scandalous or impertinent matter, so as to subject him to costs, or to the cen- sure of the courts, he must look to the solicitor for his indemnity so far as pecuniary loss is concerned.-' In some States, an attorney who institutes a suit for a non- resident is liable for costs in the event of the suit beina; dis- missed, or his client cast ; or if he recover, and judgment be en- tered up and execution issue, and there is a return thereon of no property, he is still liable for the costs. ^ An attorney who brings an action in the name of another, and in which he is beneficially interested by virtue of an agreement by which he is to have a portion of the recovery as compensa- tion for his services, is liable the same as the plaintiff for de- fendant's costs. It is not material that he was not interested in the entire amount of the demand involved in the action. It is sufficient to be interested in the recovery. ^ The authorities upon the question of the liability of an attor- ney for fees and costs are by no means harmonious. On the 1 Cushman v. Brown, 6 Paige, 339; Powell v. Kane, 2 Edw. Ch, 450; McYey v. Cantrel, 8 Hun, 522. 2 Carmichael v. Pendleton, Dud. (Ga.)173; Eossf. Harvey, 32 Ga. 388; Wright V. Black, 2 "Wend. 258 ; Jones v. Savage, 10 AVend. 621 ; Waring v. Barrett, 2 Cowen, 400 ; People v. Marsh, 3 Cowen, 334 ; Alexander v. Carpenter, 3 Denio, 260. See Jackspn v. Powell, 2 Johns. Gas. 67. The institution of proceedings by one attorney, from improper motives and without just grounds, to disbar another, is misconduct for which the court has power to impose upon the moving attorney the costs and disbursements of the proceedings. (In re Kelly, 62 N. Y. 198; 59 Ibid. 695. ) 3 Voorhies v. McCartney, 51 N. Y. 387; Bliss «. Otis, 1 Denio, OoS; Giles d. Hal- bert, 12 N. Y. 32. 234 LIABILITY TO THIRD PARTIES. § 129 one hand, it is claimed as a well-settled rule of law that where one person contracts as the agent of another, and the fact of his agency is known to the person with whom he contracts, the prin- cipal alone and not the agent is responsible. This rule has been considered directly applicable to the case of attorney and client, and has been so applied in the State of New York;^ and with this view attornej^s have been held not liable for referees' fees. But, on the other hand, when writs of mesne or final process are committed to the sheriff for service, by the attorney who sues them out, it is said that a promise by such attorney to pay the fees will ordinarily be implied, unless repelled by proof ; but not when the writs are not so delivered by him, although he may have indorsed them. This decision was placed on the ground of general usage in the State, and independent contract.^ So the liability has been held to extend to reasonable charges for the care of property, storage, etc., but only on reasonable no- tice by the officer to the attorney, as to the expenses incurred.^ And a solicitor for a party in whose behalf a witness is exam- ined is personally liable to an examiner for fees in taking testi- mony for .the benefit of the client, both for the fees of the direct and the cross-examination.* § 129. Indorsement of writ, liability for. — Attorneys have sometimes by statute been made liable for costs by reason of their indorsement of the writ, if the principal was out of the State or unable to pay for the costs arising to the defendant by his arrest, and charges of imprisonment, in case the plaintiff was nonsuited, or discontinued, or' judgment went against him ; ° and 1 Judson c. Gray, 11 X. Y. 413, doubting Adams c. Hopkins, 5 Jolms. 252 ; doubt- ing Trustees v. Cowen, 5 Paige, 570. See, also, Hartop v. Juckes, 1 Maule ,.^- S. 709; Eobbins v. Bridge, o Mees. &• W. llii Jlavberry v. Mansfield, 9 Ad. & E. X. S. 58; Sargent v. Petticone, 1 Aiken, 155; ^Vires c. Briggs, 5 Yt. 101; Maddox r. Crancb, 4 Har. & JIcH. 343; Morse v. Porter, 13 Serg. & II. 100; Preston i\ Pres- ton, 1 Doug. 21:12; Hornell i'. Kinney, 1 How Pr. 105. 2 Towle ('. Hatch, 43 N. H. 27(1. 8 Birkbeck v. Stafford, 23 How. Pr. 23(j; Towle i\ Hatcli, 43 X. H. 270; TarbeU ''. Dickinson, 3 Cush. 346. * Trustees e. Cowen, 5 Paige, 510. 5 Booker v. StincliHeld, 47 Me. 340; Chad\yick c. Upton, 3 Pick. 441; Harkuess V. Farley, 11 Me. 4!)1; Fairbanks i\ Townsend, 8 Mass. 449; Talbot c. M'hitiug, 10 Ibid. 35!l; Rowe /■. Truitt, 14 Me. 393; Hartwell c. Hemmenway, 7 Pick. 117; Miner v. Smith, 6 N. H. 219; JSIcGee o. Barber, 14 Pick. 212. § 130 LIABILITY TO THIRD PARTIES. 235 an indorsement " A. B., by his attorney, C. D.," is sufficient to establish the liability. The intention was to give a remedy to the defendant, who was unjustly suisd, against the attorney, as well as the plaintiff, unless the plaintiff himself should indorse the writ in his own proper person.^ § 130. Liability to actions on undertakings. — ^If an attor- ney undertake to do any act himself, on behalf of his client, or that his client shall perform it, unless it clearly appear, on the face of such contract or undertaking, that he did not intend to make himself personally liable, he will render himself liable to an action for its non-performance. Many persons will deal with attorneys and professional ixien, who will not deal with an un- known client. " It would be preventing," says Lord Tenterden, " much of the ordinary business of life, if we were to hold thaf a solicitor entering into such a contract as this [an undertaking to pay rent for a bankrupt tenant] did not make himself person- ally responsible. It is for him to consider the probable effect of such an instrument before he signs it."^ The same principle applies to undertakings by attorneys to pay to the adverse side the costs in an action when taxed.^ The undertaking, however, may be waived in various ways, and then the attorney cannot be called upon to perform it.* The general rule is, that when an attorney signs a voluntary recognizance he cannot avoid judgment, even if there is a rule of court or a statute prohibiting him from becoming so bound. He cannot thus take advantage of his own wrong.^ Attorneys are also sometimes liable on implied undertakings. It is a common practice for one attorney to do business for an- other. The attorney who does the business usually gives credit to the person who employs him, and not to the client for whose benefit it is done. An attorney doing business for another at 1 Chapman ». Phillips, 8 Pick. 24; Bobbins v. Hill, 12 Pick. 569; Clark v. Paine, 11 Ibid. 66; Davis v. McArthur, 3 Greenl. 27; How v. Codman, 4 Ibid. 81; Har- nuT V. "VVatson, 8 Ibid. 286. 2 Burrill v. Jones, 3 Barn. & Aid. 49; Appleton v. Binks, 5 Bast, 148. 8 Iveson V. Conington, 2 Dowl. & R. 307; 1 Barn. & C. 160; "Watson v. Murrill, 1 Car. & P. 307. * Miller v. James, 8 Moore, 208. 6 Sherman v. State, 4 Kan. 570; Wallace v. Scales, (i Ohio, 429; Jack v. People, 19 111. 58; Hicks v. Chouteau, 12 Mo. :>42. 236 LIABILITY TO THIRD PARTIES. § 131 torney may therefore give credit to that person to whom it is given in the usual course of such business, viz., to the attorney, and not to the client ; and where the jury finds — and it is the province of the jury to find upon the subject — that the credit was given to the defendant, the attorney, the law will, from the usage of the business, raise an implied contract on the part of the latter to pay. If an attorney in such a case intends not to be personally responsible, it becomes his duty to give express notice that the business is to be done upon the credit of the client.^ In equity, it has been held that where an attorney for and on behalf of his client promises to pay money as the agent of his client, he is not personally liable if he had authority from his client ; but he is, if he had no authority.^ § 131. Excess of authority. — Attorneys are liable for clearly exceeding their authority when third parties are dam- aged by reason thereof. As we have already seen,^ attorneys may be summarily compelled to perform a personal undertaking given by them in thp course of an action ; and in the course of other transactions an attorney may fix his own liability to an action on an express undertaking, or contract in his own name;* as, to give up documents, to pay the costs on a compromise of a prosecution, to pay the extra expenses in a proceeding incurred at his express request.^ If an attorney act without authority, or issues process having no legal foundation, he may be liable as a principal for any ensuing injury. Since an attorney is liable for damages suffered, if it tran- spires that the proceedings which he takes are wholly without authority, he should be certain that his instructions, whether written or oral, are genuine and authentic.^ An attorney has 1 Serace v. Wittingtou, 2 Barn, & C. 11. 2 Johnson v. Ogilby, P. "\Vms. 277. 3 Ante, Chapter IV. * Foster v. Blakelock, 5 Barn. & C. 328; 8 Dowl. & E. 48; Ivesou v. Conlugton, 1 Barn. & C. IBO; Burrell r. Jones, 3 Barn. & Aid. 17. 6 Kendry v. Hodgson, 5 Esp. 228; Watson c. ilurrell, 1 Car. ^: P. 307; Hall ti. Ashnr.st, 1 Cromp. & M. 714; S. G. 3 Tyrw. 420. 6 Hoskins v. Phillips, 16 Law J. N. S. Q. B. 333; Field ii. Gibbs, Pet. G. G. 155; Smith V. Bowditch, 7 Pick. 138; Munnikuyson v. Uorsett, 2 Har. &- 6. 374; Goit V. Sheldon, 1 Tyler, 304; People v. Bradt, 7 Johns. 539; Smith i\ Bossard, 2 Mc- Cord, 406. § 131 LIABILITY TO THIRD PARTIES. 237 been held liable for acting, though bona fide, under a written authority, which turned out to have been forged by a stranger,^ and so if he acts on behalf of a fictitious person, or an absconder.^ Under some circumstances, however, if an attorney acts bona fide under a general authority, a particular authority will be presumed. Thus, an attorney acting for a mortgagee, whose money he had himself invested, was held justified in taking pro- ceedings to recover it, without any express authority for the pur- pose on discovering that the security was bad.^ The attorney is liable to one against whom process has issued by means of fraud or deceit on the attorney's part ; and where the process is irregular or illegal, or executed against the wrong party, both the attoi-ney and the client who put it in force may be liable in trespass, the latter because the act of the attorney is, in point of law, his own act, and the attorney, because he has acted under proceedings which he is presumed to know were ab- solutely void.* The authorities seem to be in favor of the proposition that in such cases there is no distinction between the liability of the client and that of the attorney. It is not impossible that an at- torney may be in the nature of an officer handing over a paper which may be afterward acted upon with no more concurrence than that of a postman who conveys a letter. When such is Ills conduct, the principle may protect him. But if he deliberately directs the execution of a bad warrant, he takes upon himself the chance of all consequences.'^ And where an arrest is made 1 Robson V. Eaton, 1 T. R. 62. 2 Hoskins v. Phillips, supra ; Glyn v. Kirby, 1 Str. 402; Anon. Mod. 309. 3 Anderson c. Watson, 3 Car. &P. 21i. If, after proceeding to judgment against one, an attorney issue execution against another of the same name — a stranger to the previous proceeding — he might be liable to the latter in an action of tres- pass; and so. where the sheriff has seized under afl-fa. the goods of a stranger to the previous proceedings by directions of the attorney. (Rowles y. Senior, 8 Q. B. 677.) ^ Gibson v. Mudford, 1 Roll. Rep..i08; Child v. Dwight, 1 Dev. & B. Cli. 171; Barker t'. Braham, 3 Wils. 368; 2 AV. Black. 866; Codrington v. Lloyd, 8 Ad. &; E. 449; 3 Nev. & P. 442; 1 W. W. & H. 358; Parsons r. Lloyd, 2 W. Black. 845; 3 "\A'ils. 341: King w, Harrison, 15 East, 615; Loton r. Devereux, 3 Barn. & Ad. 343; Bates r. Pilling, 6 Barn. & C. 38; Jarmaine e. Hooper, 13 Law J. 2Sr. S. Com. .P. 63; People v. Montgomery, 18 Wend. 633; 7 Paige, 615. 5 Green v. Elgie, 5 Q. B. 114; Braham v. Barker, 3 Wils. 368; Codrington u. Lloyd, 8 Ad. & E. 449; Carratt v. Morley, 1 Q. B. 18. See Loton v. Devereux, 3 Barn. & Ad. 343; Brown v. Feeter, 7 Wend. 301; Cook c. Wright, Ryan ik JM. 278. 238 LIABILITY TO THIRD PARTIES. § 132 under process which is afterward set aside for irregularity, but which is not void on its face, the attorney in the suit is liable in trespass, as well as the plaintiff ; and if, in an action of trespass, he justifies under the process, it is a good replication that the process was irregularly sued out, and was afterward set aside by the court for irregularity. ^ But where the replication set forth that the process was set aside merely, without showing that it was so set aside for irregularity, it was held bad.'^ But where the process is irregular merely, and not void on its own face, the party should apply to the court and have it set aside before bringing his action ; otherwise it cannot be maintained.^ In cases, however, where the process is set aside for irregularity, it is sometimes the practice, where the proceeding set aside ap- 2Dears to have been taken in good faith, and in consequence thereof an action will technically lie, to require the party moving to stipulate not to bring an action ;* or, if one be already brought, he will be required to discontinue it, without costs. ^ But where there are circumstances of aggravation — as where an execution," set aside as irregular, is oppressively executed — this condition will not be imposed.^ § 132. Liability in cases of malpractice. — An attorney is not only liable to actions against him by his client, but he has been held liable if any other person receive damage by his mal- practice, even though he act under the retainer of his client. If he knows a case to be out of the jurisdiction of an inferior court, or goes beyond the bounds of his duty as attorney, he has been held guilty as a trespasser.'^ So a joint action of trespass, vi et armis, for false imprisonment, is maintainable against an attorney and his client, for illegally suing out a cajnas ad satis- 1 Codringtoni'. Lloyd, 8 Ad. & E. 449; 3Nev. & P. 442; 2 London Jurist, 593. 2 Prentice v. Harrison, 7 London Jurist, 580; 1 Dav. & M. 50; S. C. 4 Ad. & K. N. S, 852. 3 Reynolds v. Corp, 3 Gaines, 267; Griswold v. Sedgwick, 6 Cowen, 4U2. See Mackay v. Elackett, 9 Paige, 437. ■» Rob V. Moiiat, 3 Johns. Rep. 257. 5 Chandler II. Breckuell, 4 Cowen, 49. " Rogers i'. Qhapman, 7 Cowen, 475. " Goodwin v. Gibbons, 4 Burr. 2108; Barker i\ Braham, 3 AVils. 368; Bates c. Pilling, () Barn. & C. 38; Crozer w. Pilling, 4 Barn. & C. 26; 6 Dowl. & R. 129; Griswold c. Sedgwick, 6 Cowen, 456. § 133 LIABILITY TO THIRD PARTIES. 239 faciendum, and causing a party to be imprisoned thereupon ; and so, also, in cases of an improper issuance of an execution, where an attorney goes beyond his duties ; as, for instance, if he wan- tonly issues an execution upon a judgment unduly obtained, when he knows the debt has been paid. Attorney and client, in such cases, have both been held to be trespassers. ^ But an attorney is not liable, unless it be clearly proven that he has gone beyond the strict line of his duty. Where the at- torney is professionally bound to act as he does, he is not liable ;2 nor where he acts in pursuance of his calling; as, where he brings suit, knowing that there is a release ; for the defendant may not plead it.^ § 133. Liability for acts done — Malicious prosecution by attorney. — If an attorney maliciously procure an unauthor- ized order of attachment, operating injuriously upon the defend- ant's rights, he is liable, and so is his client.* He is also liable for an unlawful and malicious arrest, upon a claim which he knows to be unfounded.^ But it has also been held that an ac- tion for a malicious prosecution will not lie against one attorney for suing another in an inferior court, or for suing on the re- tainer of a client, although he knew there was no cause of action.^ In Massachusetts, it is said that the better doctrine would appear to be that an action will not lie against an attorney for bringing a civil action, unless he commenced it without the plaintiff's au- thority, or unless there was a conspiracy between them to bring a groundless suit — the attorney knowing it to be groundless — and commenced without any expectation of maintaining it." But the doctrine obtaining in other localities is, that if an at- torney who commenced a suit which is alleged to be malicious, knew that there was no cause of action, dishonestly and for some sinister view, for some purpose of his own, which the law con- ilnst. 102; Lutw. 124. 2Sedleyi;. Sutherland, 3 Esp. 202; Smith v. Gainsford, 1 Rose, 148; Carrott «. SmdllpEfge, 9 East, 330. 3 Anon. 1 Mod. 209. ^ Wood V. "Wier, 5 B. Mon. 544. 5 Stockley v. Hornidge, 8 Car. & P. 16. s Anon. 1 Mod. 209, 210. 7 Bioknell v. Dorion, 16 Pick. 478. 240 LIABILITY TO THIRD PARTIES. § 133 siders malicious, caused a party to be arrested and imprisoned, he will be liable therefor. And if an attorney becomes the in- strument for prosecuting and imprisoning a party against whom he knows his client has no just claim or cause of arrest, and that his client is actuated by illegal or malicious motives, he is legally liable to the injured party. It is not necessary to show a con- spiracy between attorney and client. An attorney may so act under his general employment to enforce a legal claim, as to render himself alone liable for a malicious prosecution or arrest. In actions for maliciously suing out process it is enough to aver that he falsely and maliciously, without having any reasonable or probable cause for so doing, sued out the writ, and falsely and maliciously caused the party to be arrested under it.^ An attorney who acts in good faith and in conformity with law is not personally liable to third persons for acts done in pur- suance of his clients' directions.^ For instance, an attorney is not liable for commencing legal proceedings on behalf of an- other on a groundless claim, nor for taking proceedings aga:inst the wrong party, if done by mistake, and without malice, nor for taking such proceedings as are erroneous, and without jurisdic- tion. ^ No such action will lie unless the declaration charges the attorney with acting malkiously .^ Nor is an attorney respons- ible for an illegal arrest or levy under a regular writ, unless he has actual knowledge of the illegality.^ But in the case of malice, the rule is otherwise. So an attor- ney, who deliberately issues or enforces an irregular or void writ, is liable in trespass to the party injured, and fraud or deceit in issuing legal jorocess may make him liable.^ 1 Burnap v. Marsh, 13 111. 535. 2 Go. Litt. 52a ; Jolmson c. Ogilby, 3 P. Wms. 277 : ^ybal•ton ou Agency, sec. (ill; Allaway r. Duncan, 16 L. T. X. S. 2K4; "Wigg c. Simonton, 12 Rich. 5t>3; Hunt e. Printup, 28 Ga. 297 ; Barker c. Braliam, 2 W. Black. 867. See Ford (•. ^^■il- liams, 24 X. Y. 359. s Anon. 1 Mod. 209. See Davies i\ Jenkins, 11 Mees. & AV. 745: 1 Dowl. & L. 321; 12 La^Y J. X. S. Excli. 3S(j; Carratt c. Morley, 1 Q. B. IS, 28: Burnap c. Marsh, 13 111. 535. * Ibid. ; Lynch t . Commonwealth, 16 Serg. &■ R. 368. 5 Sowell V. Champion, 6 Ad. & E. 407 : Saxon c. Cattle, 6 Ibid. H52: Gibson v. Chaters, 2 Bos. & P. 129; Bryant v. Clutton, 1 Jlces. & AY. 408; Stokes v. White, 1 Cromp. M. & R. 223. <> Gibson ..'. JIudford, 1 Roll. Rep. 408 ; Barker v. Braham, 3 Wils. 368 ; 2 W. Black. 866; Codrington i\ Lloyd, 8 Ad. & E. 449; S. 0. 3 Xer. & P, 442; 1 W. AV. & H. 358. § 133 LIABILITY TO THIRD PARTIES. 241 Liability in such cases attaches to the attorney because he has acted under proceedings which it was incumbent on him to see were absolutely void, and there appears to be no distinction be- tween the liability of the attorney and that of the client. The latter is likewise liable. The act of the attorney is, in point of law, the client's act as well.^ An attorney who maliciously and illegally sues out process is liable to the party wrongfully sued.^ If he deliberately di- rect the execution of a bad warrant, he takes upon himself the chance of all the consequences. And an attorney directing the issuance of an execution, and refusing to state whether or not he had ordered its levy upon certain property, which was levied on by order of his client, but assuming the responsibility himself, and invitinjj the suit against himself rather than-against his client, is estopped from denying his responsibility in such a suit.3 Where a ctqnas ad respondendum has been set aside for irregularity, the attorney who sued it out is liable in trespass,* and an action for false imjjrisonment lies against the plaintiff's attorney who sues out a void c«. s«., and delivers it himself to an officer, who, following his direction, arrests the defendant thereon.^ So where the defendant indorsed his name and ad- dress on a warrant sued out, on which plaintiff was committed, this has been held sufficient evidence to support a verdict for I Newbury v. Lee, 3 Hill, 523; Ford v. Williams, 24 N. Y. 359; Bowles n. Senior, 8 Q. B. 677; Somell v. Champion, H Ad, .S: E. 407; 2 Nev. & P. 627; Croser v. Pil- ling, 6 Dowl. & E. 129; 4 Barn. & C. 26; Parsons v. Lloyd, 2 W. Black. 845; S. C. 3 Wils. .341; King v. Harrison, 15 East, 615; Loton w. Devereaux, 3 Barn. & Ad. 343; Bates v. Pilling, li Barn. & C. 38; 2 Dowl. & K. 120; Liv. Law Mag. Jan. 1856; Green v. Elgie, 5 Q. B. 113; Dav. & M. 199; Braham v. Barker, 3 Wils. 369; Codrington «. Lloyd, 8 Ad. & E. 449. See Jarmaine v. Hooper, 13 Law J. X. S. Com. P. 63; People ». Jlontgomery, 18 Wend. 1)33; Child v. D wight, 7 Paige, 615; 1 Dev. &B. Ch. 171; Sedleyu. Sutherland, 3 Esp. N. P. 0. 202; Williams u. Smith, 14 Com. B. N. S. 596; Carratt v. Jlorley, 1 Q. B. 18. As to suing out a writ in a court which the attorney knows has no jurisdiction, see Goodwin ». Gibbons, 4 Burr. 2108; Bates v. Pilling, 6 Barn, ^r C. 38. When an attorney is sued for an illegal act, advice of counsel is no defense unless such advice was taken on a fair and full statement of facts. (Andrews «. Hawley, 26 Law J. Ex. 323.) 'MVarfield c. Campbell, 35 Ala. 349; Green v. Elgie, 5 Ad. & E. 114. 3 Ford u. Williams, 24 N. Y. 339. 1 Codrington ». Lloyd, 3 Nev. & P. 442; S. C. 8 Ad. & E. 449. 5 Barker v. Braham, 2 W. Black. 866: Crozer v. Pilling, 6 Dowl. & R. 129; 4 Barn. & C. 26. A. & C— 16. 242 LIABILITY TO THIRD PARTIES. § 134 the plaintiff in a plea of not guilty, in an action of trespass for false imprisonment.^ Although the act of an attorney, in handing over a warrant for execution, may be so divested of any further proof of con- currence on his part that he will not be liable, yet he is re- sponsible, if his conduct, in or after performance of the act, shows a motive beyond the mere wish to discharge a professional duty, as, if after the commitment, he has improj^erly delayed giving information as to costs, which was demanded by parties wishing to jDay such costs, and thereby purge themselves of con- tempt.^ If an attorney has strong reason to suspect ' that his client is engaged in a systematic course of fraud and forgery, and he continues to act for him as though he were honest, he is guilty of gross misconduct, although not originally cognizant of the frauds, and although not informed of the manner of obtain- ing the forged documents.^ If the attorney procures or advises a judicial officer to act beyond the scope of his jurisdiction, he is likewise subject to a suit for damages.* As it must be shown that the attorney acts maliciously, an action will not lie for acts done hona fide in the prosecution of his client's rights. If an attorney merely causes an execution to be issued, and communicates to the sheriff the directions of his clients to seize certain property, he is not liable, though the seizure was wrongful or on the wrong propertv. even though, in pursuance of the authority and direction of the plaintiff, and in his name, he execute a bond of indemnity to the officer, nor is he liable for ordering a levy on property if he act in good faith, and on reasonable cause, and with presuma- ble or probable accuracy.^ § 134. Joint liability of attorney and client. — Tlie client may be liable for the wrongful acts of the attorney, as where a 1 Green v. Elgie, 5 Ad. & E. N. S. !iy. 2 Ibid. s In re Barber, 6 Eng. L. & Eq. 338. » ■iReviU r. Pettit, 3 j\Iet. Ky. 314. See Sowell .'. Champion, (5 Ad. .•<: E. 407: Oakley c. Davis, l(i East, 82; Williams v. Smith, 14 Com. B. X. S. 59U; Evans v. Collins, 5 Ad. ^: E. X. S. 804. ^ Wigg )!. Simonton, 12 Rich. 583; Ford i. 'WiUiams, 3 Kern. 577: Huut t. Printup, L'8 Ga. 297. § 134 LIABILITY TO THIRD PARTIES. 243 plaintiff's property was taken and sold under an execution wrong- fully issued at the instance of the defendant's attorney after an appeal had been perfected ; the client was held liable in trespass.^ In Barker v. Braham, 3 Wils. 368, an attorney had taken out a ca. sa. against an administratrix without any suggestion that she had been guilty of a devastavit, and consequently without authority of law ; both attorney and client were held liable for the trespass, and no question was made of the client's responsi- bility, though there is no suggestion in the report that he per- sonally participated in the proceedings, and the contrary may be inferred. In another English case,^ attorney and client were held jointly liable in trespass for the issue and service of an exe- cution by the attorney's agent after the demand had been paid, though neither of them directed or knew of its issue. If the at- torney is retained in the cause (and this must be shown) the plaintiffs are trespassers by the act of their attorney. If the attorney is liable the client is also.'^ There is, however, a difference between a trespass committed on a third party in assumed execution of process, and one com- mitted on the defendant under process sued out irregularly. A plaintiff can never be held to intend a trespass to third persons; but when one puts his case against another into the hands of an attorney for suit, it is a reasonable presumption that the author- ity he intends to confer upon the attorney includes such action as the latter, in his superior knowledge of the law, may decide to be legal, proper, and necessary in the prosecution of the de- mand, and consequently whatever adverse proceedings may be taken by the attorney are to be considered, so far as they affect the defendant in the suit, as approved by the client in advance, and, therefore, as his act, even though they prove to be unwar- ranted by the law.* An attorney is not liable for a wrongful or illegal seizure by the sheriff, simply because he prepares the writ or warrant ; but when, in addition, he assists in or sends his clerk to assist in the levy thereof, he may become liable for every illegal seizure that 1 Fester v. Wiley, 27 Mich. 244; S. C. 15 Am. E. 185. 2 Bates V. Pilling, 6 Barn.»& C. 38. 3 Ciook I'. Wright, Pvyan & M. 278; Newbury v. Lee, 3 Hill, 525. 4 Foster v. Wiley, 27 Mich. 244; S. C. 15 Am. R. 185. 244 LIABILITY TO THIRD PARTIES. §§ 135-6 may be made under the warrant, and the plea that he is an attor- ney is not a defense.^ § 135. Liability of third persons to attorneys. — In con- sidering the liability of attorneys to third persons, it may not be inappropriate to add a few Avords as to the liability of third persons to attorneys. This liability consists chiefly for slander- ous or libelous words spoken or written by others about attor- neys in their professional character, known in the old books as slander of attorneys. § 136. Slander of attorneys. — An attorney may, like any one else, maintain an action for slander or libel, when the words or writings affect his professional character or avocation, and it may be stated, generally, that every kind of defamation imput- ing misconduct to any attorney in his profession is actionable.^ The slander should be stated as tending to injure the plaint- iff's credit and reputation in his profession and business of an attorney. The plaintiff must prove his qualification as an attor- ney, but it appears that he need not prove that he is in actual practice,^ and if the language of the libel or slander acknowl- edge the plaintiff's qualification, the proof of the qualification may be dispensed with.* In slander, when the words spoken have such a relation to the profession or occupation of the "plaintiff that they directly tend to injure him in respect to it, or to impair confidence in his character or ability, when from the nature of the business great confidence must necessarily be reposed, they are actionable, al- though not applied by the speaker to the profession or occupa- tion of the plaintiff ; but when they convey only a general im- putation upon his character, equally injurious to any one of whom they might be spoken, they are not actionable unless such application be made. But in libel, where the publication is libelous 'per se without reference to the professional character 1 Hardy c. Keeler, 56 111. 152. 2 Com. Dig. Action on the case for defamation; Bac. Abr. Libel; Viu. Abr. Slander; Stark. Ev. Libel; Boydell r. Jones, i Mees. & \V. 4415; Dovley v. Roberts, 3 Bing. X. C. 835. 3 Jones c. Stevens, 11 Price, '1','to. •* Berryman r. Wise, 4 Term Kep. 301!; Armstrong v. .Tordon, 2 Stark. Ev. 107. § 137 LIABILITY TO THIRD PARTIES. 245 of the plaintiff, the latter may, by extrinsic evidence, connect the libelous words with his professional character, and recover the natural and proximate damages to him in his profession re- sulting therefrom. In an action for libel, the fact that the words used had reference to the profession or the business of the plaintiff is not the substantive ground of the action. The ac- tionable quality of the words used does not necessarily depend upon that consideration.-' § 137. Slander of attorneys — Expressions held slander- ous. — If an attorney is slandered in his profession, he may bring an action on the case for defamation. The following expressions have been held actionable. If it be said of an attorney, " You may be ashamed to employ that knave," etc. ; " he is a base knave, and maintains his wife by knavery and cheating tricks "; " he is a cozening, cheating knave " ; " thou art a knave, and such knaves made my husband spend his estate " ; " he is a cheating knave, and maintains his family by cheating " ; "a bribing knave " ; " a corrupt man, and deals corruptly " ; " thou art an ambidexter " ; " he is a cheating attorney " ; " your attor- ney hath taken £20 of you, to cozen me; he hath cozened me £10 in a bill of costs " ; " he deals on both sides, and deceives those who put him in trust " ; " Mr. H. is a rogue for taking your money, and has done nothing for it " ; " he has not entered an appearance for you " ; " he is no attorney at law " ; " he don't dare to appear before a judge " ; " what signifies going to him " ; " he is only an attorney's clerk, and a rogue " ; " he is no attor- ney " ; " he is a forging attorney " ; " he is a forging knave " ; " tell the knave E. I will teach him, or any attorney, to sue out a writ, for it is tantamount to knave attorney " ; " he is a cham- pertor, a common barrator" ; " he stirreth up men to suits" ; "he is a common maintainor of suits, and a champertor " ; "I will have him thrown over the bar " ; "a base rascal, I will make him lose his ears " ; " he hath the falling sickness, for that disables him ■1 Sanderson v. Caldwell, 45 N. Y. 398; S, C. Am. Eep. 105; Cawdry u. Higley, Cro. Gar. 270; Chaddock v. Briggs, 13 Mass. 248; Davis v. Ruff, Cheves, 17; Ayre v. Craven, 2 Ad. & E. 2: Dorley v. Roberts, 8 Bing. K. C. 835; Jones «. Little, 7 Mees. & W. 423. 246 LIABILITY TO THIRD PARTIES. §§ 138-9 In his profession " ; " he cannot read a declaration " ; " he hath no more law than a goose, bull," etc' § 138. Expressions held not slanderous. — It has been held not actionable to say to or of an attorney : " I'll have thee pitched over the bar " ; " H. hath found forgery against him " ; " he keeps his house and compounds with his creditors " ; " I have taken out a judge's order to tax A.'s bill " ; "I will bring him to book, and have him struck off the roll." ^ Where an attorney averred that the libel was " of and con- cerning him generally," and " of and concerning him in his busi- ness and profession of an attorney,'' this was held a divisible allegation, and though the plaintiff could not prove he was a cer- tificated or practicing attorney at the time the libel was pub- lished, yet he was entitled to maintain the action for the libel on his character generally.^ § 139. Other expressions. — The words, " he is no more a lawyer than the devil," are actionable when spoken of an attor- ney ; * and so are the words, " he deserves to be struck off the roll."^ But the words, " I have taken out a judge's order to tax A.'s bill ; I will bring him to book, and have him struck off the roll," are not.^ The words, " he has defrauded his creditors, and has been horsewhipped off the course at Doncaster," spoken of an attorney, have been held not actionable, unless applicable to his conduct in his profession ; notwithstanding it might tend to injure him morally and professionally.^ The plaintiff, an attorney, wasemploj'ed to bring an action ; the defendant was commissioned to adjust the accounts, and, finding that an action was about to be commenced, wrote a letter to plaintiff's client, blaming him for allowing the plaintiff to sue, and concluded by saying : " If you will be misled by an attorney who only considers his own interest, you will have to repent it ; 1 2 Eap. 624; Com. Dig. tit. Action on the case for defamation, F. 8. 2 Ibid. 8 Lewis V. Walter, 4 Dovvl. & E. 810. 4 Day V. Butler, 3 WiLs. 59. 5 Pliillips ).'. Janseu, 2 Esp. (124. 6 Ibid. ' Doyley v. lloberts, 3 Bing. N. C. 835; 5 Scott, 40; 3 Hodges, 154. § 139 LIABILITY TO THIRD PARTIES. 247 you may think, when once you have ordered your attorney to write, he will not do any more without your further orders ; but if you once set him about it, he will go to any length without further orders." In an action for a libel it was held that it was properly left to the jury whether this letter applied to the plaint- iff individually, or to the profession at large ; and that it was unnecessary to direct them to find whether it were a confidential or malicious communication.-'^ It is libelous to impute to an attorney " sharp practice " in his profession.^ A declaration in libel stated that the plaintiff was an attorney, and that certain orders had been made by the Court of Queen's Bench for setting aside proceedings, with costs, in an action in which the plaintiff was the attorney of the then defendant, and the defendant was the attorney of the then plaintiff, and that the costs had been ascertained and taxed by one of the masters ; that sharp practice in the profession of an attorney is, and is con- sidered to be, disreputable practice, and discreditable to the at- torney adopting it ; yet that the defendant, intending to cause it to be believed that the plaintiff had been guilty of sharp prac- tice as aforesaid in the said action, and had been reprimanded for it by the master, published of him the following false, iron- ical, and libelous matter : "An honest lawyer, [thereby mean- ing the plaintiff, and meaning to represent that he was not an honest lawyer] a person of the name of C. B., etc., was severely reprimanded the other day by one of the masters of the Queen's Bench for what is called sharp practice in his profession," mean- in o- and alluding to the plaintiff's practice with respect to the said orders, and that such practice was sharp practice as afore- said. It was held that that part of the statement which imputed to the plaintiff sharp practice was sufficiently explained by the introductory matter to show that it was libelous.^ To call an attorney a cheat is actionable,'' or " he cannot read a declaration," ^ and these without stating special damage. So to say of an attorney in his business, " H. is a rogue for taking 1 Godson V. Home, 3 Moore 223; 1 Ball & B. 7. 2 Boydell v. Jones, 7 Dowl. P. C. 210; 4 Mees. & W. 44a ; 1 Horn, & H. 408. 8 Ibid. * Eiish V. Cavenaugh, 2 Barr, 187. 6 Jones V. Powell, 1 Mod. 272. 248 LIABILITY TO THIRD PARTIES. § 140 your money, and has done nothing for it ; he has not entered an appearance for you ; he is no attorney at law : he don't dare to appear before a judge ; what signifies going to him? — he is only an attorney's clerk, and a rogue ; he is no attorney." ^ Also the words, " How lawyer Bishop treats his clients," heading a re- port of a case in court, are libelous, though they might be justifi- able if merely prefixed to a particular case ; the words being general are a charge of treatment, in the manner asserted, not of that client only, but of all clients.^ The distinction is, that to impute to a professional man ignorance or want of skill in any particular transaction, is not actionable ; but if the words were spoken or written of him generally, an action will lie.'^ Thus, to say of an attorney in a particular suit, "F. knows noth- ing about the suit ; he will lead you on until he has undone you," is not actionable, without alleging and proving special damage* But words imputing a want of integrity, whether used generally or particularly as to some one transaction, are actionable, as to charge an attorney with disclosing confidential communications made to him by his client for the purpose of in- juring his client, and of aiding and abetting another person with whom he has combined and colluded.^ § 140. The evidence. — General evidence of the plaintiff's bad character and ill repute in his business as a practicing attor- ney, cannot be admitted either to contradict an allegation in the declaration that he, during, etc., exercised and carried on the business of an attorney with great credit and reputation, with a view to mitigating damages on the general issue, or in support of averments in the defendant's pleas, pleaded by way of justifi- cation, that the plaintiff was a disreputable attorney and prac- titioner in the law.^ In actions to recover damages for slander of attorneys, it is generally necessary (according to some authorities) for the ' Hardwick v. Chandler, 2 Strange, lloS. 2 Bishop V, Latimer, 4 L. T. X. S. 775. 3 Garm. Selden, 6 Barb. 416, reversed in S. C. 4 Comst. 91; Jones i\ Powell, 1 Mod. 27'J. * Foot V. Brown, 8 Johns. 64. Bnt see Secor v. Harris, IS Barb, 425. 6 Jones V. Powell, 1 Mod. 272. See AVakley r. Healey, 7 Com. B. 591. 8 Jones V. Stevens, 11 Price, 235. § 140 LIABILITY TO THIRD PARTIES. 249 plaintiff to prove by the roll, or some equivalent record or doc- umentary evidence, that he has been regularly admitted and sworn, with proof that he has practiced in his profession. ^ But where there was a threat that the party would move the court to have the plaintiff struck from the roll, thife was considered an admission that the plaintiff was an attorney, and dispensed with further proof.^ But proof of admission has, on the other hand, been considered unnecessary by about an equal number of con- trary decisions.^ In an action for a libel, the declaration stated that the plaint- iff was an attorney, and had been employed by the parishioners of the parish of St. M. as vestry-clerk ; that while he was such vestry-clerk certain prosecutions were preferred against one M. for certain misdemeanors, and that in furtherance of such pro- ceedings, and to bring the same to a successful issue, certain sums of money belonging to the parishioners were ajopropriated and applied to the discharge of the expenses and law charges incurred on account of the said proceedings ; yet defendant, intending to injure plaintiff in his profession of an attorney, and to cause him to be esteemed a fraudulent practicer in his said profession and in his office as vestry-clerk, and to be a person unfit to be trusted therein, and to deprive him of the same, and cause it to be suspected that 2:)laintiff , had fraudulently appro- priated money belonging to the parish, falsely and maliciously published of and concerning plaintiff, and of and concerning his conduct in his office as vestry-clerk, and of and concerning the matters afoi-esaid, the libel. When the libel was produced at the trial, the imputations appeared to be that the plaintiff had appropriated money belonging to the parishioners in discharge of the expenses of the prosecution after they had terminated. And the court held that it was not a material variance, for the character of the libel was not altered, the misconduct imputed to -the plaintiff being the same, whether the money was so ap- plied before or after the termination of the prosecutions, and 1 Jones V. Stevens, 11 Price, 235 ; v. Moor, 1 Mauls & S. 284. See Green v. Jacksan, Peake, 236. 2 Berryman v. Wise, 4 T. E. 366. j s ,,. Moor, supra; Leicester v. Walter, 2 Camp. 251. See Green v. Jack- son, Peake, 236. 260 LIABILITY TO THIRD PARTIES. § 140 the averment, that the libel was published of and concerning the matters aforesaid, not making it necessary to prove literally that the libel did relate to all the matters previously stated; and also, that other libels published by the plaintiff of the de- fendant, not relating precisely to the same object, could not be received in evidence, either in bar of the action, or in mitiga- tion of damages.^ A declaration for a libel stated that the plaintiff was an attor- ney, and that the defendant, intending to injure him in his good name, and in his said profession of an attorney, published a libel of and concerning the plaintiff, and of and concerning him in his said profession. At the trial the plaintiff failed in proving that, at the time of the publication of the libel, he was an attorney. The court held that this was not a fatal variance between the allegation and the proof, the words of the libel being action- able, although not used with reference to the professional char- acter of the plaintiff.^ 1 May V. Brown, 4 Dowl. & R. 670; 3 Barn, &: C. 113, ••^ Lewis V. Walter, 3 Barn. & C. 138n ; i Dowl. & R. 810. In an action for slander of an attorney, the judge nonsuited tlie i^laintiff, on the ground that the words were mere general abuse, and not of and concerning him in his pro- fessional character; and it was not insisted on at the trial that the question ought to be submitted to the jury; the court refused to set aside the nonsuit and grant a new trial. (Tomlinson v. Brittlebauk, 1 Har. & W. 573. ) In an action by an attorney for words reflecting on him in the condact of a cause, the proceedings in the cause must be produced in evidence; nor is it suf- ficient to dispense with the production of them that the costs have been taxed and all the papers given up. (Parry v. Collis, 1 Esp. 399. ) PRIVILEGED COMMUNICATIONS. 251 CHAPTER VIII. THE PIII\'ILEGE OF PROFESSIONAL COMMUNICATIONS, § 141. Relative duties. § 142. Origin of the rule as to privileged comruunioations. § 143. Rule not confined to pending suits. § 144. General rules. § 145. Rule in the Federal Courts. § 14G. Rule in equity causes. § 147. Burden of proof. § 148. Importance of communication not a test. § 149. Injunction of secrecy not necessary. § 150. Communications held privileged. § 151. Communications held not privileged. § 152. Disclosures allovred for protection of attorneys. § 153. Professional employment necessary. § 154. But a formal retainer not necessary. § 155. Jlode of imparting privileged information. § 156. Effect of the client's calling the attorney as a witness. § 157. Right of cross-examination of attorney. § 158. Effect of attorney making himself attesting witness. § 159. Effect of the presence of both parties. § 160. What iJersons tlie privilege includes. § 161. Clerks, interpreters, conveyancers. § 162. Client also protected from testifying. § 163. Rule as applied to documents. § 164. Deeds. § 165. Testamentary communications. § 166. Fraudulent transactions. § 167. Admissions. § 168. Acts done. § 169. Matters observed. § 170. Communications in view of breaking the law. § 171. Collateral matters. § 172. Third parties. § 173. Disclosing address of client. § 174. Privilege not lost by termination of ]3rofessional relation. § 175. Communications made to legal advisers of two parties jointly. § 176. Correspondence between co-defendants. § 177. Waiver of the privilege. § 178. Propositions to compromise. § 179. Information received extra prof essiouallj'. § 180. Information not within the scope of professional duty. § 181. Rule in criminal cases. § 182. Course for attorney to pursue when subpoenaed. 252 PRIVILEGED COMMUNICATIONS. §§ 141-2 § 141. Relative duties. — Having reviewed in the preceding chapters the law in relation to those matters which concern the attorney as a member of a certain j)rofession, his vocation, as distinguished from his relative duties to his client, we have next to consider what may be called the law of attorney and client. The attorney's relation with his client usually opens with a statement on the part of the latter concerning the nature of the business about which he has sought his professional adviser. In doing this, he necessarily makes many disclosures of a private and confidential nature, disclosures which are known to the law as " privileged communications," which will constitute the sub- ject of the present chapter, and in which we shall endeavor to ascertain under what circumstances the communication is sacred, and when the client may rest secure that the law will not even allow, unless with his own consent, the confidence to be broken, and when, on the other hand, the seal of secrecy may be removed, and the attorney allowed, or compelled, to state upon the wit- ness-stand the transactions and conversations between himself and his client during the existence of their professional relations. In a survey of this subject, a brief inquiry will be made as to the origin of the privilege, to be followed by a statement of the general rules which obtain. After this, it will be appropriate to discuss somewhat more in detail how far the privilege extends, and whom it includes, its effect upon the compulsory production of documents, including deeds and testamentary communications. It will be found that there are various exceptions to the rule, or cases not within it — as that the privilege does not extend to com- munications made with a view of breaking the law ; information received extra professionally, and not in the scope of profes- sional duty, nor to collateral matters. The effect of an attorney's making himself an attesting wit- ness will also betouched upon, as well as the consequences of a termination of the relation, and whether propositions to compro- mise can properly be divulged, and if so under what circum- stances. § 142. Origin of the rule. — The origin of the rule in re- gard to professional communications seems to be as follows : In ancient times, 23aTties litigant were in the habit of coming § 14B PRIVILEGED COMMUNICATIONS. 253 into court and prosecuting or defending their suits in person. Subsequently, however, as lawsuits multiplied, and the modes of judicial proceeding became more complex and formal, it became necessary to have these suits conducted by persons skilled in the laws and the practice of the courts, or attorneys. But as parties were not then obliged to testify in their own cases, and could not be compelled to disclose facts known only to themselves, they would hesitate to employ professional men, and make the neces- sary disclosures to them, if the facts thus communicated were within the reach of their opponent. To encourage the employ- ment of attorneys, therefore, it became necessary to extend to them the immunity enjoyed by the party. ^ If this was the true foundation of this rule, it would follow that the protection might have been confined to communications made with a view to the conduct of a suit, or some judicial pro- ceeding ; and in the earlier cases, when the origin of the rule would be most likely to be kept in view, this doctrine would seem to have been most strictly applied, and the witness excused from testifying, on the ground that he was attorney in the cause ; ^ but what an attorney learned otherwise than for the purpose of a cause or suit, he seems at first to have been bound to commu- nicate. There is now, however, as we shall presently see, another class of cases, still more numerous, which indicate a different doctrine, viz., that the privilege has no special relation to suits in court or judicial proceedings of any kind, but extends to every case where a member of the legal profession is consulted or employed pro- fessionally. § 143. Whether the rule is confined to pending suits. — The extent of this obligation of secrecy on the part of the attor- ney has been the subject of extended discussion both in England 1 Whiting V. Barney, 30 N. Y. 330; Annesley o. Anglesea, 17 How. St. Tr. 1139; Dixon V. Parmelee, 2 Vt. 185. 2Berd v. Lovelace, Gary, 88; Austin u. Vesey, Gary, 89; KiUvay v. Kilway, Gary, 120; Denio v. Codington, Ibid. 143; Wadswortli /■. Hamsliaw, 2 Brod. & B. 5; Williams v. Mundie, 1 Ryan & M. 31; 1 Car. & P. 158; Broad ». Pitt, 3 Car. & P 418- S. C. 1 Moody c^' JI. 2.33; Duffin v. Smitli, Peake, 103; Waldron v. Ward, Style, 449; Sparks u. Middleton, 1 Keb. 505; Curtis v. Pickering, 1 Vent. 197; Vaillant v. Dodermead, 2 Atk. 524. 254 PRIVILEGED COMMUNICATIONS. § 143 and America, and in regard to it the very highest authorities have differed. Upon the question whether the business, in re- spect to wjiich the communication is made, must, to make it privi- leged, relate to a lawsuit, either pending or anticipated, or may respect any other matter where professional aid or advice is neces- sary, the great names of Lord Tenterden,i Lord Kenyon,^ Lord Hardwicke,^ and Chief Justice Best,* are found ranged in favor of the restricted rule. In arriving at a conclusion diametrically opposite to the de- cisions of these distinguished authorities, it is deemed due to the profession, as well as to the author, to review somewhat exten- sively the entire question ; to give the reasons for the establish- ment of the opposite rule, and the authorities upon the opposite side, and to say at the outset that in favor of the contrary and broader rule are to be found the not less honored names of Lord Brougham, Lord Lyndhurst, Chief Justice Tindal, and Justice Parke, as well as the great weight of modern authority both in England and in the United States of America.'^ In a case in. chancery,^ Lord Brougham gave the subject his most deliberate consideration ; and after consulting with Lord Lyndhurst, C. B., Tindal, C. J., and Parke, J., adopted this rule: '"If," said he, "touching matters that come within the ordinary scope of professional employment, a solicitor receives 1 Williams v. Mundie, Ryan & M. 34; 1 Car. & P. 158; Wadswortb v. Hamshaw, 2 Brod. & B. 5n. See Peck v. Williams, 13 Abb. Pr. 68. 2 Cobden v. Kendriok, 4 T. R. 431 ; Duffin v. Smith, Peake, 108. 3 Vaillant v. Dodemead, 2 Atk. 524. 4 Broad v. Pitt, 3 Car, & P. 518; Moody & M. 233, s Greenough v. Gaskell, 1 Mylue & K, 98; Comack r. Heathcote, 2 Bred, ..S: B. 4; S, C, 4 Moore, 357: Herring v. Cloberry, 1 Turn, &• Phil. 91; S, C, 6 London ,Tu- rist, 202; Chirac i', Reinicker, 11 Wheat, 294; INIcLellan c, Longfellow, 32 Me 494; Sargent /•, Hampden, 38 Me, 581; Parker r. Carter, 4 Munf, 273; AVhitlng v. Barney, 38 Barb. .393; Johnson c, Sullivan, 23 Mo, 474; Durkee .■. Leland, 4 Vt. 615; Foster v. Hall, 12 Pick. 89, per Shaw, C. J.; Bolton r. Liverpool. 1 Mylne & K. 88; Moore r. Terrill, 4 Barn, & Ad, 870; Peter r. Watkins, 3 Bing, X. C, 421; Mynn r. Joliffe, 1 Moody & R. :i27; Stroder r. Scyton, 2 Ad, .S: E. 171; Sliel- laro 0, Harris, 5 Car. & P. 592; Taylor e. Blacklow, 3 Bing, X, C. 421; Miuet i . Morgan, Law R. 8 Ch. 361; Turton r. Barber, Law R, 17 Eq, 329; Lawrence c, Campbell, 4 Drew. 485; Walkeri', Wildman, 6Madd.47; Wilson c. Trout, 7 Johns, Ch. 25; 2 Cow, 195; King v. Boddington, 8 Dowl, & B, 726; Clark c, Clark, 1 Moody & R. 5; Wetlierbee v. Ezekial, 25 >'t, 47; Parkhurst c. McGraw, 24 Mi.ss. 134; Swift i'. Perry, 13 Ga. 138; Milk-r i\ Weeks, 22 Pa, 89; People v. Barker, 56 111, 29S, 6 Greenough ii, (xaskell, 1 Mylue & K. 98, § 143 PRIVILEGED COMMUNICATIONS. 255 a communication in his professional capacity, either from a client or on his account, and for his benefit, in the transaction of his business, or, which amounts to the same thing, if he commits to paper in the course of his employment on his behalf, matters which he knows only through his professional relation to his client, he is not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any court of law or equity, either as a party or witness." And in another case in the same court,^ Lord Lyndhurst reviewed and strongly enforced this principle : " I am of opinion," said he, " that the principle acted upon in the case of Cromack v. Heathcote ^ is the correct principle : namely, that where an attorney is professionally em- ployed in order to transact professional business, whatever passes between the client and his attorney, for the purpose of enabling him to transact that business, is a privileged communi- cation, which the client may object to have given in evidence. The decision in the Common Pleas is in accordance with the pre- vious decisions, and the general understanding and practice of the profession. Several cases at ni»i prius were cited, in which Lord Chief Justice Tenterden had laid down the rule with con- siderable limitations, and had restricted it to communications made with reference to causes instituted or about to be instituted ; but afterward extended it to cases where doubts and controver- sies existed, which might lead to litigation. This was narrow- ing the rule too much ; for it might be necessary to consult a leo'al adviser on many- other difficulties, as, for instance, on titles to property ; and communications on such a subject must also be privileged. It appears that, in one case at ?i/.si ^;mjs. Chief Justice Best was inclined to adopt the decision of Lord Tenter- den. That decision, however, is not supported by any previous authority, and cannot be supported on principle. The restric- tion of the rule is not consistent with sound principle ; for it may and would often be of as much importance that communi- cations made at other times, as well as in the progress of a cause, should be protected. In the ordinary transactions of the world people must resort for legal advice to legal advisers, and these 1 Herring v. Cloberry, 1 Turn. & Phil. 91. 2 2 Brod. & B. 4; S. C. 4 Moore, 357. 256 PKIVILEGED COMMUNICATIONS. § 143 communications must be privileged. I think, if the case stood here, I should adhere to the rule — that such communications are entitled to protection. But the case does not, in fact, rest here. The question came before Lord Brougham, and wa.s much con- sidered by him ; and he delivered a detailed judgment Yi^hioh supports the decision of the Common Pleas. There were cases, also, before Lord Cottenham, in which, though he was not called on to pronounce an opinion on the question, it is clear from the scope of his observations, and the course he pursued, that he agreed with the Court of Common Pleas in their judgment. There can be no doubt that the principle applies to the evidence of Mr. Pearse ; and the rule I lay down is this : that where an attorney is employed by a client, professionally, to transact pro- fessional business, all communications relative to the business on which he is employed are privileged communications ; and that this j^rivilege is the privilege of the client, and not of the attor- ney." Whatever may have been the origin of the privilege, the reason for a contrary rule has been well expressed by Lord Brougham.^ He says : " If the privilege were confined to com- munications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all pre- cautions superfluous." And in fact, the English rule, as sus- tained by the weight of authority, is now, that prima facie all communications passing between an attorney or solicitor and his client, with relation to business to be transacted by the former for the latter, are to be deemed privileged,^ and it is not neces- sary for the purpose that the communications should have been made in the contemplation of litigation. They are equally privi- leged if they relate to and are made in the course of the dispute which is the subject of the suit.^ And the privilege extends to all cases where a communication is made to an attorney or other 1 Greenoiigh r. Gaskell, 1 Mylue & K. 9S ; 3 Watts, 20; '\\'eeks e. Argent, 16 Law J. N. S. Exch. 210 ; Tarquand u. Kuiglit, 2 Mees. & AV. 101 ; Jloore v. Ter- rell, 2 Barn, &• Adol. 876. ^ Pearce «. Pearce, 16 Law J, Oh. 153 ; Herring v. Cloberry, 11 Law .1 . N. S. Ch. 189 ;1 Pliill. 91, 96. 3 Claggett r. PluUips, 2 Yonnge & 0. 82; Hughes c. Garuous, 6 Beav. 352, ^ l4o PRIVILEGED COMMUNICATIONS. ioT legal adviser, in his professional capacity ,i or relating to matters within the ordinary scope of an attorney's dnty,^ as a negotia- tion for the loan of mone3%'5 the sale of an estate,* or the prepa- ration of a deed,^ and the restriction is lasting, for the attorney's mouth is shut forever ; nor does it matter whether or not, at the time the evidence is offered, the attorney continues in practice, or be on the roll of the court.'' "• The foundation of the rule," says Lord Brougham, " is not on account of any particular importance which the law attrib- utes to the business of legal professors, or any particular dispo- sition to afford them protection. But it is out of regard to the interests of justice, which cannot be upholden, and to the admin- istration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings."'' In England, where an attorney acts as advocate in a legal proceeding, he has been pre- I'luded altogether from giving any evidence.^ But in America no distinction is made on this head between attorney and coun- sel, nor is the testimony absolutely excluded as to a matter of fact of which he obtained a knowledge independent of his pro- fessional character.^ " A lawyer, no matter in what capacity he may be employed," says Wharton, " is not, by Anglo-American law, permitted to disclose communications made to him by his client in the course 1 Turqiiand c. Knight, 2 Mees. & W. 101. See also 1 Caiues, 157 ; 11 Paige, 377. - Carpmael v. Powis, 1 Phill. 687. See also Parker v. Carler, i Munf. 273 ; 5 X. H. ill. •I Turqnand v. Knight, 2 JNIees. & W. 100 ; Harvey r. Clayton, 2 Swanst. 221 ; Anon. Skin. 404. * Carpmael v. Powis, 1 Phill. ti87. See also Foster k. Hall, 12 Pick. 89 ; 3 ^^■atts, 20. ■' Cromack v. Heathcote. 2 Ball & B. 4 ; Eobson u. Kempe, 4 B.sp. 2.35 ; 5 Esp. -,i: Parker v. Carter, 4 MUnf. 273; 14 Pick. 41li. 6 Wilson r. Eastall, 4 Term Eep. 759; Cholmondeley v. Clinton, 19 Ves. 2Cil, See Bank i\ Mersereau, 3 Barb. Ch. 528. 'Greenough i. Gaskell, 1 Mylne & K. 103. See also Anon. Skin. 404, pi. 40; Wilson .,'. Grove, Toth. 275; Ehoades v. Selin, 4 Wash. C. C. 718; 3 Yates, 4; Yordan v. Hess, 13 Johns. 492; 11 Wheat. 280; Parker «. Carler, 4 Munf. 273; Wright, 136; 1 Porter, 433; Eiley Ch. 9. 8 Stone '■. Byron, 16 Law. J. Q. B. 32; 4 Dowl. & L. 393; Dunn ... Packwood, 1 B. C. E. 312; 11 Jnr. 242; Pearce v. Pearce, l(j L. J. Ch. 157. sSpart r. Middleton, 1 Keb. 505; Eiggs c. Denniston, S.Johns. Cas. 198 A. & C— 17. 258 PRIVILEGED COMMUNICATIONS. § 143 of their professional relatioii.s. Oral communications are thus protected,^ and a fortiori does the privilege extend to cases stated for the opinion of counsel,^ and to written instruments held by counsel or attorneys on behalf of clients." The priv- ilege is essential to public justice ; for, did it not exist, 'no man would dare to consult a professional adviser with a view to his defense, or to the enforcement of his rights.'* Nor is the priv- ilege in any way affected by the statutes making parties wit- nesses,^ though it is said that a party making himself a Avitness cannot, on ground of the statute, refuse to answer as to his con- fidential communications to his counsel."^ If the protection were confined to cases where proceedings have been commenced, the rule would exclude the most confi- dential, and it may be the most important, of all communications : those made with a view of being prepared for instituting or de- fending suit, up to the instant that the process of the court issued. If it were confined to proceedings begun or in contem- plation, then every communication would be unprotected, which a party makes with a view to his general defense against attacks which he apprehends^ although at the time no one may have re- solved to assail him.'' But were it allowed to extend over such commimications, the protection would be insufficient if it only I Wharton on Evidence, sec. 576; Cromack v. Heathcote, 2 Brod. & B. 4 ; Carp- maeli'. Powis, 1 Phill. 692; Greenough v. Gaskel, 1 Mylne & K. 101; Chant /■. Brown, 9 Hare, 790; Jenner )■. E. E. 7 Q. B. 7()7; Skinner r. E. E. L. E. 9 Ex. 298: WooUey E. E. L. E.4C. P. 002; Maxhamr. Place, 46 Vt.i34; Higbee c. Dresser. 103 Mass. 523; "Williams r. Fitch, 18 N. Y. 550; Britton r. Lorenz, 45 N. Y. 57: Graham v. People, 63 Barb. 468; Bellis, In re, 38 How. N. Y. Pr. 79; Jenkinson V. State, 5 Blackf . 465 ; Ortou v. McCord, 33 Wis. 205; Chahoon r. Commonwealth . 21 Gratt. 822; State v. Hazleton, 15 La. An. 72. '^Pearce v. Pearse, 1 DeGex & S. 25. ^Laing v. Barclay, 3 Stark. E. 42; Doe v. James, 2 Moody & E. 47: Volant c. Soyer, 13 Com. B. 231; Hawkins v. Howard, E. & M. 64; Bargaddie Coal Co. / . Wark, 3 Macq. 468; Crosby v. Berger, 11 Paige, 377. •iLord Brougham in Greenough v. Gaskell, 1 Mylne & K. 103. "Montgomery r. Pickering, 116 Mass. 227; Brand v. Brand, 39 How. Pr. 193: Barker v. Kuhn, 38 Iowa, 395. 6 W^oburn v. Henshaw, 101 Mass. 193. T Hare on Discovery, 2d ed. 118, 158; Greenough (■. Gaskell, 1 Jlylne & K. 98. 100, per Lord Brougham, 101, 115. See Ford D.Tennant, 32 Beav. I(i2. The cause need not be commenced. (Clark )•. Clark, 1 Moody & E. 3; Cromack c. Heath- cote, 4 Moore, 357; 2 Brod. & B. 4.) The client need not be a party to a cause in court. (Eex r. Withers. 2 Camp. 578; Gillard r. Bates, 6 Mees. & "W. .")47; S D. P. C. 774.) § 143 PRIVILEGED COMMUNICATIONS. 259 included communications more or less connected witli judicial proceedings ; for a person oftentimes requires the aid of profes- sional advice upon the subject of his rights and his lialjilities, with no reference to any particular litigation, and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry. Thus, an attorney, consulted upon a man's title to an estate, is not at liberty to divulge a flaw ; ^ and so with the protection given to a scrivener, and attorney's clerks. No one can be compelled to disclose to the court any commu- nication between himself and his legal adviser, which his legal adviser could not disclose without his permission, although it may have be.en made before any disjiute arose as to the matter.^ The rule extends to the jjroof of the contents of a deed of which an attorney first obtained a knowledge by having obtained and read it at the susffestion of counsel at the consultation in the cause.^ Xor can an attorney be compelled to produce any deeds or muniments of his client's title, though he may be asked whether 1 Greenough v. Gaskell, 1 Mylne & K. 98; Herring v. Cloberry, 1 Pli. fll; Jones V. Pugl), Ibid. 9fi; Harvey r. Clayton, 2 Swaust. 221; Carpmeal v. Powis, 1 Pli. 687; Davies r. Waters, 9 Mees. &: AV. (308; Wlieatley c. Williams, 1 Mecs. & "W. 553; Taylor v. Forster, 2 Car. & P. 195. 2 Stephen on Ev. Art. llfi. " Xo legal adviser is permitted, whether during ur after the termination of his employment as such, imless with hi.s client's ex- press consent, to disclose any communication, oral or documentary, made to him as such legal adviser, by or on behalf of his client, during, in the course, and for the purpose of his employment, Avhether in reference to any matter as to which a di.spute has arisen or otherwise, or to disclose any advice given by him to his client, during, in the course, and for the purpose of such employment. It is immaterial whether the client is or is not a party to the action in which the question is put to the legal adviser. This does not extend to— 1. Any such com- munication as aforesaid made in furtherance of any criminal purpose; 2. Any fact observed by any legal adviser in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether his attention was directed to such fact by or on behalf of his client or not; 3. Any fact with which such legal adviser became acquainted otherwise than in his character as such. The expression 'legal ad- viser' includes barristers and solicitors, their clerks, and interpreters between them and their clients." (Stephen on Ev. Art. 115.) 3 Davies r. Waters, 9 Mees. &W. 608; 1 Dowl. N. S. 651; 11 Law J. Exch. 211. See, also, Jackson r. Burtis, 14 Johns. 391; 17 Johns. 335; 18 Johns. 330; 11 Paige, 377; 1 Hill, 33; 4 Wend. 558; 6 Barb. IIG: 7 Wend. 216. 260 PRIVILEGED COMMUNICATIONS. § 143 or not he is in possession of ;iny piirticular deed, in order to en- able secondary evidence to be given of its contents.^ The theory of the later cases is that communications made to a counsellor, when made in the character of a legal adviser, are to be protected, as the privilege of the party asking tlie advice The rule is founded on principles of public jjolicy. It has been found necessary to the protection of persons surrounded and embarrassed by difficulty, to the end that they may have the ad- vice and counsel of persons skilled in the law upon a complete disclosure of all that pertains to the transaction that a£Pects their interest, property, or liberty, with the full assurance that the communications thus made are as safe with their legal ad- viser as within their own breasts. These facts are the privilege of the client, and not that of the attorney." The rule requires that the entire professional intercourse be- tween client and attorney, whatever it may have consisted in, should be protected by j^rofound secrecy. The exemption is not confined to advice given or opinions stated. It extends to facts communicated by the client — all that passes between client and attorney in the course and for the purpose of the business. So stringent is the rule that an attorney to whom ajjplication was made to draw a deed, and who declined the emplovment, was not permitted to disclose communications made by the partv to the effect that his object was to make a fraudulent convev- ance. The interests of justice and the protection of private rights demand the strictest confidence in this relation.'^ The rule which excludes testimony of professional communi- cations is broad enough to embrace a case where the one. seek- 1 Bate ('. Kinsey, 1 Cronip. JI. & R. 08; Davios v. Waters. 1 Dowl. N. S. (iol: 11 Law J. Exch. 214. See also cases cited siiprc R. ;U7. '■> Fountain i . Young, Esp. 113. § 144 PRIVILEGED COMMUNICATIONS. 263 vealed at any period of time, unless by tlie client's consent ; nor in an action between third persons ; nor after the prdcccdino-s to which they refer are ended : nor after dismissal of the attorney.' The information, however, to be privileged, must have been communicated in matters as to which the attorney stood strictly in the relation of an attorney or solicitor to the party communi- cating it; and it must also have been confidentially communi- cated.- Communications, therefore, made before the attorncv was professionally concerned, are not privileged; nor are they when made after the professional em[)loyment has ceased •,^ nor such as the attorney obtains in any other way than as the confi- dent of his client. An attorney who desires to protect himself from testifying, must, therefore, show that the knowledge and information came solely from the client. Information derived from other persons, or other sources, although obtained while acting as attorney, is not privileged."' Necessary communications between an attorney and his client, through an unjjrofessional person, are privileged ; but if they are not wholly of a professional or confidential nature, it seems that the privilege will not be allowed.^ Where an attorney got jios- session of a forged promissory note professionally, from his client, a prisoner in custody for the forgery, an order was refused to compel the attorney to produce the note or to give a copy of it to the clerk for the purpose of setting it out in the indictment, and on the trial it was held he was not bound to produce it.'^ " The privilege extends to all knowledge possessed by tlie 1 Wilson !. Eastall, 4 Duni. &- E. 750, (JIJ; Sloman r. Heme, 2 Esp. Ij!i5; iiex [■. VVitliei'S, 2 Camp. 578; Guinsford r. Grammar, Ibid. 10; Parkhur.st r. Lawton, ■-' Swanst. iy4, 221; 1 Phil. Ev. 7tli ed. liO. ■^ Parker r. Carter, 4 Muut. 273; Kiggs v. Demiiston, 3 .Johns. Cus. 198; Khodt-s V. Selin, 4 "Wash. C. C. 718; Wright, 136; 3 Yates, 4; Johnson r. Davome, I'.i .Johns. 134. 3 Cutts r. Pickering, 1 Vent. 1117 ; Lord Say and Seal's Case, 10 Mod. 40 ; Oohden V. Kendrick, 4 T. 1!. 431; Yordan r. Hess, 13 Johns. V-M. See, also, I'erry v. Smith, 1 Law J. N. S. 269; 4 Mees. .K; "\V. tJBl; 1 Car. & M 554; Shore v. Bedford, 12 Law J. Com. P. 138; 5 Man. & O. 271; 3 Wend. .393; ^\•right, 133; 19 Johns. 134; 3Edw. Ch. 399. ^ Crosshy !,'. Berger, 4 Edw. Cli. 25(j; Bank r. Jlesserrau, 7 Paige, 317; Sjieu- celey r. Schulenberg, 7 East, 357; Coventry «. Tanuahill, 1 Hill, 33; Sawyer (i. Birchmore, 8 Mylne & K. 372; Desboroiigh v. Rawlins, 3 Mylne & K'. 515; Robin- son V. Flight, 8 London Jurist, 888. See Greeuough v. Gaskell, 1 Mylne & K. 98. ° Bunbury v. Bunbury, 2 Beav. 173. Rex V. Smith, 1 Phill. Ev. 132. 264 PEniLEGED COMMUNICATIONS. § 14i lawyer which he would not have obtained if he had not been consulted professionally bv his client.^ Even when a solicitor writes letters to a third party for the purposes of a suit, the answers are privileged ;2 and so letters passing between a coun- try solicitor and his town agent are privileged.^ Communica- tions, even with lay agents, with regard to the preparation of a case, are in like manner protected." * In an action by the payee of a promissory note against the maker, it appeared that the plaintiff had acted as attorney to the defendant, and while holding that capacity had obtained doc- umentary evidence from the defendant which he stated was wanting to assist her in preparing a case for counsel ; and on this he relied to take the case out of the Statute of Limitations. It was held that the evidence was inadmissible for the plaintiff. Piatt, B., observed that it would never have been in the hands of the attorney except for the purjDOse of his preparing a case for counsel ; and Martin, B., added : " The client might be in error in thinking the communication necessary to be laid before counsel ; but if she communicated it honafide, considering it nec- essary, the communication was privileged, and coidd not be di- ■\'ulged."" '^ If a matter be disclosed to an attorney in a cause, he cannot be jiermitted to give it in evidence either in that or in anv other action. Where a plaintiff, having a demand upon a defendant, and before the q,ction was commenced the defendant employed his attorne}^ to make certain projHjsitions to the plaintiff in re- gard to the controversy, the attorney, it was held, could not be examined as to wliat his client, the defendant, said upon the oc- casion ; but what the attorney said when lie made the propositions was considered e\idence against the defendant, without further proof of the attorney being authorized by him. The fact of the attorneyship was sufficient.*^ It lias been held that an attorney is not bound to speak as to the particulars t)f a bill of exchange 1 Woods V. A\'()uds, 4 Hare, 83; "Wluirton ou Evidence, sec. .')77: Greenougli /■. (iiiskell, 1 Jlyhie & K. !1,S, per Lord Brougliani. 2 Simpson <:. Brown, X', Ik-av. 4So, « Catt V. Towie, 19 VVcelv. E. 56. * Ross r. Gibbs, Law W. S Eq. ryl'l; Preston c Carr, 1 Younge & .1. IT."!. ■'' Cleave r. Jones, 6 Ex. 'nW; VVliarton on Evidence, see. .'ilT, note. '' Gainsford r. Grammar, L' ( 'amp. !); "Wilson r. liastall, 4 Divru. ,5t E. T."!.:. § 144 PRIVILEGED COMMUNICATIONS. 2Go when the knowledge was only derived from the bill heing in- trusted to hiin by his client.^ The seal which the law once fixes upon such communications remains forever, unless removed by the party himself in whose favor it was there placed. And where the privilege belongs to several clients, it is said that no one of them, nor even a major- ity, contrary to the expressed will of the others, can waive the privilege, so as legally to justify the attorney in giving testi- mony in relation to such privileged communications. Nor does the fact that the client whose assent to the removal of the seal of professional confidence from privileged communications has not been obtained, is not a party to the suit in which his attor- nej' is called u2:)on to testify, alter the case.^ Neither will the fact that an attorney was a subscribing wit- ness to a warrant of attorney prepared by him for his clients to execute, alter the question as to the admissibility of his evi- dence, tending to the conclusion that the object of giving the warrant of attorney, and having judgment entered thereon, was to hinder and delay their creditors in the collection of their debts ; and that the judgment was given for a much larger sum than was justly due to the judgment-creditor. An attorney is bound to disclose what took place in the prep- aration and concoction of the instrument which he witnessed, or at any other time, not connected with the execution of such instrument. Thus, an attorney who is professionally employed to prepare a deed for his client, and who afterward witnesses its execution, may be compelled, not only to prove the execution of such deed, but also to testify whether it was ante-dated ; whether it Avas in the same form in which it now appears, at the time of its execution, or has been altered ; and whether it was actually delivered at the time he subscribed his name thei-eto as a witness : so if the deed has been lost, or is in the hands of the adverse party, who refuses to produce it upon the trial, or for the purposes of suit, the attorney who witnessed the deed may be compelled to testify as to the contents thereof, although in the preparation of such deed he was professionally employed.-' 1 Beard i\ Ackerman, 5 Esp. 120. 2Baiik of Uticat). Mersereau, 3 Barb. Cli. 5HG; Wilson r. Rastall, i T. E. TtiO; Rex V. Withers, 2 Camp, 578. 3 Bank of Utica v. Mersereau, 3 Barb. Cli. u!)7-8: Robeson v. Kemp, 5 Esp. 5o: ■2(j(j PUniLEGED COMJIUNICATIOXS. §§ 145-6 § 145. General rule in the Federal Courts. — The general rule holds good in the courts of the United States. The ad- mission in e\idence of previous communications to counsel, wlicn made j)rofessiona]ly, is not allowed by Federal statute, and, remarks Mr. Justice Bradley, " it is to be hoped that it will not soon be. The protection of confidential communications, made to professional advisers, is dictated by a wise and liberal policy. If a person cannot consult his legal adviser without being liable to have the interview made public the next day by an examination enforced by the courts, the law would be little short of des^jotic. It would be a prohibition upon professional advice and assistance." ^ § 146. In equity causes, it has been held that an attorney's privilege will also prevail where the communication is made by one of the parties to the suit ; and that it extends to every com- munication for professional assistance, and whether made directly or through the intervention of other parties, so long as it is in behalf of a party to the cause, but not where the solicitor is em- ployed in unprofessional matters, as, for instance, in negotiations for the purchase of an estate.^ The attorney must disclose j^ublic acts, as, for instance, what passed at the execution of a deed, he being a witness, or where he was sent by his client with orders to put a judgment in force; but he is not bound to disclose private conversations as to the reasons for executing the deed. In such a case, depositions have been referred to a master, to ascertain what part came to the knowledge of the witness in confidence as an attorney, and what publicly as a witness, so that the former might be suppressed.'' Bills of discovery were soilietimes filed against attorneys, to discover matters relative to the business with their clients. Pleas that the defendants were attorneys, and faithfully managed the business for their clients, and ought not to discover the same, were generally considered good pleas. Where a bill was filed Liird Say and 8eali>s' C'asr, 10 Mod. iO; Assignees of Blakely r. Kemp, 4 Esp. -So; I.essee of lievdv r. Burke, 2 Fox ^: 8. 191. 1 Connecticut Mut. Life Ins. Co. v. Sclmefer, i Otto U. S. 4.">7. - Parker v. Lowten, 2 Swaust. 201, per Lord Eldon: Walker c. Wildman, 6 M(]d. 47. 3 Sandford c. Keraington, 2 Ves. ISO. §§ 147-9 PEIVIIyEGED CO.AIMUNICATIONS. 267 for the discovery of a deed and its contents, the court ordered the discovery as to whether there was such a deed, where it was and to whom it was delivered, and when tiie attorney last saw it, and in whose custody it was, but refused to grant the j^rayer to discover the dates or contents of the deed.i As the solicitor may, by his answer to a bill against him and his client, refuse to discover any deeds or facts confidentially communicated to him, so exceptions to his answer for shortness in not making such dis- closure, and relying on that defense, have been overruled.^ § 147. Burden of proof. — The burden is upon the party who seeks to have his statements suppressed as evidence, because they are privileged. The facts that would make them so must be proved. Where an attorney testified that he never understood " he was counsel, or to be counsel, in this matter," etc., this took the statements made out of the list of privileged communica- tions .^ § 148. Importance of the communication not a test. Whether the communications of a client to his attorney shall or shall not be regarded as matters of professional confidence, and therefore be excluded, does not depend upon their imjDor- tance or materiality in the jjrosecution or defense of the suit, but on the character of the communications. 'The client cannot be expected to be fully informed how far many matters commu- nicated may be important or unimportant, material or immate- rial ; nor can he reasonably be expected to decide and to be gov- erned by such considerations in making his disclosures — his ob- ject being to communicate everything in any way appertaining to the transaction.* § 149. Injunction of secrecy unnecessary — Effect of declining retainer. — To entitle a client to the protection of the rule, .it is not essential that he be apprised of it, or that he enjoin secrecy upon the attorney, nor that the client should be aware of his right.^ Declarations made to an attorney witli 1 Kingston i:. Gale, Fincli, 259; Legarcl r. Foote, Ibid. 82. ■^ Stratford v. Hogan, 2 Ball & B. I(i4. 3 Earle r. Grout, 46 \t. 11.3. i Aiken c. Kilburne, 27 Me. 252. o JIcLellan ii, Longfellow, 32 Jle. I'Jl. 268 PRIVILEGED COMMUNICATIONS. § 150 reference to his employment in a cause fall under the privilege, although the attorney declines the engagement, because the lat- ter may not be able to determine whether to render or withhold his professional aid until the applicant has disclosed the merits of his case.^ § 150. Communications held privileged. — An attorney for a plaintiff in ejectment cannot be made to testify whether a plaintiff had not employed him to sue for his individual benefit, and had authorized his name as administrator to be used for his individual benefit.^ "Where an attornej^ was consulted as to the means of avoiding responsibility for the costs of several suits, which another had instituted in his name, and the latter had ad- vised that a motion be made to the court, to' compel the plaintiff to give security, and in the course of the conversation the pai'ty consulting remarked that he had four or five hundred dollars of the money of the plaintiff in his hands — tliis was held privi- leged : this was held to have been made professionally.''^ An attorney who has obliterated an indorsement on a bond belonging to his client, on which bond a suit is fiending, and who states upon oath that he has no knowledge of the contents of the indorsement but that which he had received as attorney in the cause, is not bound to testify as to the contents of that indorse- ment.* Where a solicitor, who had been emjiloved to foreclose a mortgage, was asked, as a witness before an examiner, whether he had received any instructions from the complainants, his clients, as to the sale thereunder and the amount to be bid. he was excused from answering.^ An attorney cannot be called upon to testifv respecting the con- dition and appearance of a deed of trust and the trust-notes at the time when they were committed to him to bring suit of fore- closure upon. Nor does the fact that the communications to the attoi-ney were made in the form of deeds, or not, exclude them from the protection of the rule.*^ Even where, by the admissions 1 Sargent v. Hampden, ;is Me. 581. 2 Stephens v. iUic. .37 < ia. 289. ■■' Brazier r. Fortune, 10 Ala. 516;, State r. Marshall, S Ala. ;'.0l'. * Crawford r. JIcKissack, 1 Port. 433. ■'' Stuyvesant r. Pecldiam, 3 Edw. Ch. 579— affirmed on appeal to chancellor. '■ Gray r. Fox, 43 JTo. 570 ; 1 Greenl. Ev. sec. 241 : Brown i\ Payson, G X . H. 443 : Cuveney r. Tannahill, 1 Hill. :'.::. § 150 PRIVILEGED COMMUNICATIONS. 2(l9 of a party, a champertous contract is established between him and his attorney, the hitter is not a competent witness to prove that tlie statements of his client are false, and that no such con- tract was entered into.^ In an action on a promissory note, tlie plaintiff's attorney is privileged from being called ujjon to prove that the note in suit belongs to other persons than the plaintiff', and that the plaintiff' is but a trustee with respect to it.'- Counsel for a bankrupt is privileged from answering, when examined as a witness in the bankruptcy proceedings, as to any information concerning the affairs of the bankrupt, which he received as such counsel from the bankrupt, or from persons to whom he was referred Ijy the bankrupt for the purpose of ob- taining such information as such counsel. But he may be re- quired to answer ([uestions not coming within this jjrincijjle.'^ ^\. claimant who deposed that "ol)Stacles having arisen in granting a second lease, one only was granted," was asked, on cross-ex- amination, whether the obstacles were suggested by him to his solicitor, or by his solicitor to him, and he was held not bound to answer, though the communication was before any litigation was in contemplation, and the bill of costs delivered in the same matter was also held to be ^Jrivileged. There is now^ no distinc- tion between communications made with a view^ to litigation, and simply before litigation. Both, if confidential, are privi- leged.'' The attorney for the original defendant cannot be called as a witness to prove the debt, in an action against the sheriff for an escape, where he became acquainted with the business only by the information of his client.'' The court will not order a de- fendant to produce letters which jjassed between him and his solicitor in the professional relation, in the progress of the cause, or with refei'ence to it, previously to its being instituted, or which contain legal advice ; as where the object of the letter was to direct the solicitor to take the opinion of counsel upon the ques- tion in dispute.^ 1 Dowell c. Dowel], 3 Head, 502. - Miller c. Weeks, 22 Pa. 89. •^ In re Aspinwall, 7 Ben. i'A'i. * Turton i\ Barber, 17 Law E, Eq. o29; Minet v. Morgan, 8 Law 11. Cli. 301. ^ Sloman v. Loudon, 2 Esp. 096. 6 Garland '•. Scott, 3 Sim. .390; Vent v. Parcey, i Rus,s. 193. 270 PRIVILEGED COMMUNICATIONS. § 150 Where a,n attorney came to the knowledge of a deed or in- strument having been destroyed, from the fact of his employ- ment as an attorney, he cannot Ije examined as to the fact. An attorney got the possession of a forged promissory note profes- sionally from his client, a prisoner in custody for the forgery ; the court refused to make an order on the attorney to produce the note, or to give a copy of it for the purpose of setting it out in the indictment, and on the trial held that he was not bound to produce it.^ AVhere a notice has been given to produce a deed, but the notice cannot be proved, the attorney for the other party cannot be called upon to produce it, although he admitted a receipt of the notice. Unless a defendant has received proper notice to produce a deed, evidence that he has admitted that he had it with him is not admissible.^ A client told his attorney, who assisted him in the confession of a judgment against himself in favor of a creditor, that he did it that he might have his piano sold on execution, so his other creditors could not attach it. The court allowed the attorney to determine whether he would disclose the communication, and he refused ; but as the communication was considered privileged in any event, this fact was not considered error, the result being the same.^ Instructions given by a party to his attorney, not in the presence of the opposing j^arty, in respect to a settlement of matters in dispute, are inadmissible in behalf of the party giv- ing them.* The rule applies although the communications do not relate to litigation, and it extends equally to both parties.^ In a case where an attorney was regarded as attornev for both husband and wife, he was not allowed to testify as to a conver- sation had with the wife, it being of a professional character; an action was brought by the wife to recover possession of her separate real property from her vendee. The conversation was had with her by the attorney of the husband in relation to the iRex r. Smith, 1 Phill. Bv. 132; Ilex r. Dixon, 3 Burr. 1687. 2Doe d. Wartney r. Grey, 1 Stark. 238; Read v. Passer. 1 Esp. 21(1; Lauis . . Barclay, 3 Stark. 38; Harris c. Hill,l Dowl. & R. 17; Copeland r. Watts. 1 Stark. 95; Merle v. Moore, 2 Car. & P. 275; Hooper r. Harcourt, 1 H. Black. 534. s Maxliam r. Place, 40 Vt. 434. See also Orton i\ McCord, 33 Wis. 205. ■iChilds r. Delaney, 1 Tliomp. c'\- C. 50li. 5 Carnes r. Piatt, lo Alib. Pr. N. S. :;;i7 ; S. C. 31! N . Y. Superior Court, 361: Brit- ton V. Lorenz, 45 IST. Y. 31. § 150 PEIA'ILEGED COMMUXICATIOXS. 271 sale of certain personal property purcliaserl with money derived from the sale of the real estate.' The rule has been held to em- brace a case where one seeking counsel pays no fee and employs other attorneys in the prosecution of the business, and even whei-e the lawyer consulted is afterward employed on the other side.^ And also a case where two adverse parties counseled with an at- torney, and made disclosures to him, the latter was not permit- ted to give in evidence the declarations of either.^ In an action by an indorsee against the makers of a promis- sory note, an attorney called as a witness by defendant was compelled against the plaintiff's and his own objection to testify that he received a letter from the payee, containing a claim for intoxicating liquors against the defendants ; that he advised his correspondent to get a promissory note on time, signed by the defendants, and to indorse it for value, before it was due, to an innocent third person ; and that he afterward received the note in suit from the plaintiff. The plaintiff also produced, at the request of the defendants, but against his own objection, the letter to the attornev, which stated that the defendants owed the payee a running account for intoxicating liquors furnished to them in Wisconsin. But permitting these disclosures was held a violation of the rule excluding privileged communications.* An attorney who knew, professionally, of the transfer of a promissory note, on which an action was afterward brought, was not admitted as a witness to prove the terms of the transfer.^ Communications made by a prisoner to his counsel in the course of professional employment, and documents placed by him in the charo-e of his counsel, are not admissible as evidence against him in a criminal prosecution.^ A communication to an attor- ney in reference to his client's personal estate, made upon re- taining him to draw an affidavit for the purpose of procuring a reduction of the assessments' of such estate, is privileged.' An attorney who in his professional character has received 1 Scranton v. Stewart, 52 Ind. 68. See Lockhard r. Brodie, 1 Teiin. Cli. :184. 2 Cross V. Eiggins, 50 Mo. 335. 3 Hull V. Lyon, 27 Mo. 570. 4 Higbee r. Dresser, 103 Mass. 523. s Beltzlioover r. Blackstock, 3 Watts. 20. 6 State V. Hazleton, 15 lia. An. 72. 7 "Williams v. Fitcli, 18 X. Y. 546. 272 PRIVILEGED COIJMUNICATKKXS. § 150 from the owner of property confidential communications on the subject of a transfer of it, whicli is subsequently made, cannot be examined, against the consent of the grantee, in relation to such communications.' When an attorney has received confi- dential communications from a partnership firm, one member of the firm cannot release him from the obligation of secrecy. It is the privilege of all ; and before the attorney can properly dis- close such communications he must have the consent of every member of the firm.^ So where tVie privilege extends to several not partners, one cannot release from the obligation.'^ A bill filed by the insurers of a life against the insured, to which the solicitor of the insured was a party, as a defendant, stated that on a particular day an agent of a company with whom the insured wished to effect an insurance came to the office of the insured, and told their agent that the life was bad, handing to such agent at the same time an unfavorable medical report upon the life. The defendant, the solicitor of the insured, . was present at this interview ; but, in his answer to the bill, re- fused to state what passed, because he was then the solicitor and attorney, and was present as the solicitor and attorney of the in- sured, and acquired his information touching the matters which he refused to answer solely from the fact of his being present at the time in the capacity of solicitor and attorney, and profes- sional and confidential adviser of the insured. The court held that this answer was sufficient, and the information was privi- leged.* In trover for a lease by the assignees of a bankrupt, the plea was that before tlie bankruptcy the bankrupt deposited the lease with the defendant as a collateral security for monev which the bankrupt owed him. At the trial the plaintiffs attempted to show that the lease was deposited after the act of bankruptcy, and for that jiurpose called a witness, who had been the attor- ney for the bankrupt after the act of bankruptcy, and had been applied to by him to raise him money. It was tiien proposed to ask him whether the bankrupt had not the lease in his possession at that time. The court held that this was privileged from dis- 1 Fijster /■. Hall, TJ Pick. 89. 2 People c. Barker, .5(i 111. -I'M. '■'■ Clialiuon's Case, 21 (Iratt. Si".'. ^ I>csliorougli r. Kawlins, :1 Myhie & (.'. '>15; ^. C. '2 .lur. 12.-1. § 150 PRIVILEGED COMMUNICATIONS. 273 closure, as being a confidential communication made to him rela- tive to his character as an attorney.^ A applied to B, an attorney, to raise money upon certain prop- erty, and enable him to obtain an abstract of the title and com- pare it with the original ; but the money was never raised. In an ejectment, B was called upon to produce the abstract, as sec- ondary evidence of an original deed stated therein. It was held that A's communication was confidential, and that B's evidence was therefore inadmissible.^ An attorney is not obliged to give evidence of a charge of forgery against his client.^ An attorney is not bound to speak as to the particulars of a bill of exchange, when the knowledge of those particulars is only derived from the bill having been intrusted to him by his client.* In an action by payee against maker of a promissory note for money lent, the plaintiff, for the purpose of taking the case out of the Statute of Limitations, tendered an account-book, contain- ing an admission by the defendant of payment of interest to him. The defendant's counsel then raised a collateral issue as to the -admissibility of the book, and proved that the plaintiff, being the attorney of the defendant, wrote to her for a statement of the debts and payments of her late husband, adding : " This from you will assist me in preparing the case for counsel." "Whereupon the book in question was sent to the plaintiff. It was held that the communication was privileged.^ Communications made to an attorney by his client respecting the sale of estates are privi- leo-ed ; the rule is not limited to suits existing or expected. The privilege of communication between solicitor and client extends to all matters within the scope of the ordinary duties of a solic- itor, and the sale of estates being of such matters, a solicitor is not at liberty to disclose what passed in conversations which he had, either with the client or the agent of the client, relative to the amount of the bidding to be reserved upon the sale of an es- tate in which he had been concerned for him, or to other matters connected with such sale.^ 1 Turquand v. Knight, 2 Mees. & W. 98; 2 Gale & D. 192. ■i Peters V. Watkins, 4 Scott, 155; 3 Bing. N. C. 421; 3 Hodges, 25; 1 Jur. 42. 3 Eex V. Dixon, 3 Burr. 1687. -1 Beard i'. Ackerman, 5 Esp. 120; 4 Esp. 235; 5 Esp. 52. 5 Cleave v. .Jones, 7 Ex. 421; 21 Law J. Ex. 105. 6 Mynn )'. Joliffe, 1 Moody & R. 326; Carpmael t>. Powis, 1 Ph. G87; 15 Law J. Oh. 275. A. & C— 18. 274 PRIVILEGED COMMUNICATIONS. § 160 An attorney cannot be permitted to testify that his client told him before action brought that he intended to waive a forfeiture on which the action is sought to be maintained.^ It makes no difference in regard to the rule as to privileged com- munications, that the client is no party to the cause before the court. Thus, upon an indictment for breaking open the house of the prosecutor and assaulting his person, the attorney cannot give in evidence a communication made to him by the prosecut- or, while consulting him professionally upon the subject, al- though such communication be materially at variance with the evidence given by the prosecutor in the witness-box ; nor dis- close what passed at the time between them and a third person in regard to the pi'oprietorship of the house in which the offense was committed, although such third person was no jJarty to the pending prosecution.^ An attorney who, being resorted to by a borrower to raise money for him, peruses, on the part of the proposed lender, the abstracts of the borrower, is not allowed to give evidence con- cerning them against the borrower ; ^ and an attorney employed by consent of two parties in preparing a deed from one to the other, cannot be examined as to what he so became informed of in the prejjaring of the deed, when the action is brought by the assignees of one against the other, suggesting fraud in the deed.* But the privilege attaches to such communications onlv as are made by each party to the attorney in the character of his own professional adviser. Thus, where the same attorney was acting both for the vendor and purchaser of an estate, a communication from the latter, asking for time to pay the purchase-money, was held not to be privileged, as being made to him in his character of attorney for the vendor.^ A claimant who deposed that •• obstacles havino- arisen in granting a second lease, one only was granted,"" was asked, on cross-examination, whether the obstacles were suggested bv him 1 Goodlight V. Bridge, Lofft, 27. 2 Rex V. Withers, 2 Camp. 57.S. 8 Peter v. Watkina, 3 N. C. 421;-Taylor v. BlackloTi', Ibid. 2.m. * Eobson r. Kemp, 4 Esp. 235; 5 Esp. ,j2. But see Warde r. "Warde, 5 Eng. L. & Eq. 217; Hawl^ins v. Gathercole, 2 Iliid. 100. i; Perry v. Smitli, Mces. & W. (iSl; Brauglie /■. Cradoclc. 1 Muody .S: i;. 182; Claeve v. Powell, Ibid. 22S; Sliore r. Bedford, ~> Man. tS; (t. 271. § 151 PRIVILEGED COMMUNICATIONS. 275 to his solicitor, or by his solicitor to him, and was held not bound to answer ; and a bill of costs delivered in the same matter was also held to be privileged. ^ § 151. Communications held not privileged. — In an ac- tion by an officer on an agreement to indemnify him for making an attachment, the facts that the defendant directed his attorney to make the attachment, and that, upon being asked for a bond of Indemnity, he consulted his attorney, and was told by him that if he directed the attachment to be made, or agreed to in- demnify the officer, he would be liable, whether he signed the bond or not, are not privileged. ^ An attorney is not privileged from disclosing by whom he was employed in the management of a cause, and that he was instructed by one person to follow the directions of another in the prosecution of the business, although the knowledge was acquired by confidential consultations as counsel and clients.^ An attorney is not privileged from disclosing the name of his client in any particular suit, that not being matter of professional confidence ; but he cannot be compelled to testify as to the situ- ation of an instrument, at the time it was committed to him, for the purpose of having a suit instituted upon that instrument.* Counsel of defendant may be called to prove whether a sig- nature on a note in suit is that of the defendant, if he is not required to disclose any matter of confidential communication, or to base his opinion upon any statement of the defendant.^ Upon the trial of one indicted for perjury in falsely swearing resjjecting the existence of a partnership, it was held that the attorney whom he had consulted respecting the partnership mio-ht be asked what advice he gave the defendant in the matter about which he was charged to have sworn falsely.^ A conversa- tion with a lawyer about matters concerning which it was jarob- able there would be litigation, but where there was no retainer, 1 Turton v. Barber, Law E. 17 Eq. 329; 7 Moak Eng. E. 852, approving Minet u. Morgan, Law E. 8 Cli. 366, 367. 2 Day c. Moore, 13 Gray, 522, 3 Gower v. Emery, 18 Me. 79. * Brown v. Payson, (5 N. H. US. 5 Brown v. Jewett, 120 Mass. 215. s State V. McKinney, 42 Iowa, 205. 276 PRIVILEGED COMMUNICATIONS. § 151 nor anything showing that the advice was sought to regulate future conduct, has been admitted in evidence.^ Plaintiff's attorney, as a witness, was questioned by defend- ant as to who owned the note when he, the attorney, sold it to the plaintiff, and the witness was held bound to answer the question, as it did not call for facts communicated to him by the plaintiff ; and this, althougli the payee had formerly been his client, since the latter did not appear as a party in interest in the action. The question whether the witness had ever ad- vanced any money to any person on the note, did not call for an answer which could have been the subject of a privileged communication.^ What a mortgagor in treaty to raise money says to the attorney of the mortgagee is not privileged.^ It is said that whether a communication by a client to his attorney was made in confidence is a question of fact, to be dis- posed of by the court. If the attorney, while managing a suit for the client, receives a deed of the client's property without consideration, and then, at the client's request, deeds the prop- erty to another person without consideration, these facts are not privileged communications, and the attorney may be required to disclose them as a witness in a suit by a creditor to cancel the deeds. If, pending the relation of client and attorney, the client communicates to the attorney a fact foreign to the object for which the attorney was retained, the communication is not con- fidential. If an attorney is retained in an action, and the client after final judgment makes disclosures respecting the subject of the employment, the communications are not privileged.* The rule does not extend so far as to prohibit the attornev from stating by whom and when he was employed, and in what capacity. Neither does the rule prevent the attorney from testi- fying to communications made to him by his client, unless they are confidential communications, made by the client in the course 1 Thompson v. Kilborne, 28 Vt. 750. 2 DeWitt ('. Perkins, 22 Wis. 473. 3 Masters v. Downes, 4 Nev. & M. 8S1; 1 Ad. & E. 31; 3 Car. ..t P. 381. A took a forged will to B, a solicitor, and asked hira to advance money on a mortgage of the property mentioned in the will. B made no charge for the inter- view, and did not advance the money. Held, not a privileged communication. '. Evans, 24 Ga. 461. ' Martin v. Anderson, 21 Ga. 301. Shaughnessy v. Eogg, 15 La. An. 330. 278 PRIVILEGED COMMUNICATIONS. § 151 ney, or by other persons to him, are not privileged, and the at- torney is bound to disclose them the same as any other witness. The rule does not extend to any facts within the attorney's knowledge, or information acquired by him in any other way than by such confidential communications of the client.^ When an attorney has an interest in the facts communicated to him, and their disclosure becomes necessary to protect his own per- sonal rights, he must be exempt from the obligation of secrecy.^ A communication made to an attorney by a person seeking pro- fessional advice or assistance to enable him to forge a contract, is not privileged.^ An attorney has been compelled to testify that, in collecting a claim his client had assigned, he acted on behalf of such client, and that the latter forbade him to pay over the proceeds to the assignee.* An attorney must testify how he obtained posses.sion of a paper which is the basis of his client's suit.^ Where clients authorize an attorney at law to make a certain contract with a party, which is done, and the contract is carried out as per agree- ment, the authority thus given is not a confidential communica- tion Ijy the clients, and the attorney may prove the contract.^ From copies of letters written before the litigation, by a plaintiff to one of the defendants, it appeared that the former had taken opinions of counsel and the friendly opinion of an ex-chancellor on points which afterward became part of the subject-matter of the litigation. Plaintiff, in answer to an ap- plication to produce these opinions, and the cases on which they were founded, objected, on the ground that they were written in antici[)ation of, and" in relation to, the litigation; but he was compelled to produce both classes of documents for inspection.^ Tlie rule d(jes not apply when the client sues the attorney for disobeying instructions alleged to have been given in consulta- • tiallaglier r. Williamson, lio Cal. 331: Bank v. French's Executrix. 1 Crancli (J. C. 221; Hunter c. Watson, 12 Cal. 377; Bogert .. Bogert. 2 Edw. Ch. :j99; Eoclie.ster Bank c. Suydam, 5 How. Pr. 354; Marsli o. Howe, 3i) Barb. li-t'J; Hat- ton r. Robinson, 14 Pick. 41(>; Hramwell ( . Lucas, 2 Raru. c^' C 745. 2 Rochester Bank c. Wuydani, supni. 3 People ('. Blakeley, 4 Parker, Cr. C. 1711. ■» Mulford 0. MuUer, 3 Abb. N. Y. App. 330. 6 AUc'n V. Root, 31) Tex. 5811. « Burnside v. Terry, 51 6a. 186. 7 Smith ('. Daniell, Law Reports. 18 Equity, G49. § 151 PRIVILEGED COMMUNICATIONS. 279 tions, and for unskillfully managing a cause, upon information given by the client in them.^ Communications made to one who was receiving business as an attorney, but was not one in fact, though he expected to be, and was actually admitted at the next term of court, were considered not privileged.^ An attorney may state by whom he was employed. Where an attorney stated that he did not know that he had ever talked with the party about his business, his testimony was allowed.^ f'ommunica- tions made by a party to one who usually acted as his attorney, but who, at the time the statements were made, was acting as attorney for other persons, have been deemed not privileged.* Counsel may be examined as to the mere fact of the existence of the professional relation ; but where the question went further, and asked, not only whether the witnesses were employed, but whether they were employed by the client to conduct an eject- ment for him c/.s- landlord of the preiyiises, the question in this form was held to involve a disclosure of confidential communi- cations. It sought a disclosure of the title and claim set up by the client to his counsel for the purpose of conducting the cause. It was virtually seeking a disclosure as to the nature, extent, and grounds of the client's title.^ A communication should be made under cover of an employment strictly professional, and should be such as the business to be done required to be made ; it should also be of a confidential nature, and ^o considered at the time, and should be shown to have been made with direct reference to the professional business. When the attorney has an interest in the facts communicated to him, and when their disclosure becomes necessary to protect his own personal rights, he must be exempted from the obligation of secrecy.*^ A fraudulent grantee of real estate ini^uired of an attorney whether he could give a mortgage on the land so as to prevent 1 Mave ('. Baird, IL! Ind. 31S. ^ Sample r. Frost, 10 luwa, 2Uli. 8 Satterlee e. Bliss, 3G Cal. 4y0. ■• Wilson V. Godlove, 34 Mo. 337. 5 Per Story, ,T.— Chirac ». PiKinicker, 11 Wheat. 21)4. « Roche.stL-r Bank «. Siiydam, 5 How. Pr. 254. The principle just enunciated in this case is probably sound. There are dicta, however, in the opinion of Sel- den, J., in favor of restricting thiirule to cases pending or anticipated, which are not in consonance with the weight of authority. See ante, §§ 14.'J-4. 280 PRIVILEGED COMMUNICATIONS. § 151 his grantor from getting it back. The attorney advised him not to give a mortgage ; but, if anything, to give a deed. The attorney, by his directions, drew a deed of the land to a third person; and at the time of its execution, and afterward, conver- sations between the parties to the deed were had in his presence, showino; that it was given and received in Ijad faith. The at- torney was not retained generally for either of the parties to the deed, and had previously been employed to draw writings for each of them, and had sometimes been consulted by the grantor ; but had only once been paid by him for counsel, and had at the time a small professional account against the grantor ; but was not paid for the advice in regard to the deed referred to, and did not charge or expect anything for it; though nothing was said at the time to indicate whether the grantor expected to pay for it or not. As the parties left the attorney, after one of the conversations, one of them told him that he could not say any- thing about it, as he was " an attorney," or " their attorney." The court held that in a suit by the owner of the land to set aside the deed, that the attorney was competent to testify to the ad- vice and conversations i-eferred to, although the jiarties to the deed objected to the disclosure as a breach of confidence.^ Where an act is done in pursuance of a bargain between two parties, and in presence of the attorneys for each of them, the communication by one jDarty to his attorney, relating to that act, is not privileged so as to prevent the attorney from giving evi- dence of it.^ Where, upon the sale of an estate, the same attor- ney was employed by the vendor and by the purchaser, a com- munication from the purchaser to the attorney, asking for time to pay the purchase-money, is not privileged.^ The rule does not extend to facts of which the counsel or attorneys themselves obtain knowledge in the course of a trial, and from other sources than the client,* or from third parties,^ whether strangers to 1 Dunn V. Amos, 14 \Vis. lOB. The rule applies to the ease where two persons, having hostile interests, consult the same attorney at the same time, with re- spect to the matters in dispute, and one of such parties calls upon the attorney to testify with resiiect to the declarations and admissions made by the other at the consultation. AVlietlier a communication is ju'ivileged or not, is a qviestion for the court. (Hull y. Lyon, 27 Mo. 570. ) 2 Weeks v. Argent, 16 Mees. & "W. 817 ; 11 .Tur. 52.5; l(i Law .r. Ex. 20!). 3 Perry v. Smith, <) Mees. & W. USl ; Car. X: M. 5.54. * Brown v. Foster, 1 Hurl. & N. 736; 3 Jur. N. S. 245; 26 Law J. Ex. 249. 6 Ford V. Tennant, H Jur. N. S. 2II2; 32 Law J. Ch. 465; 11 Week. E. .324; 7 L. T. N. S. 732; 32 Beav. 162. § 151 PEIYILEGED COMMUNICATIONS. 281 or the opponents of the client, although made to the solicitor while acting in that capacity. A judge must decide the prelimi- nary question whether a communication is privileged or not ; and this decision is subject to review.^ An attorney may be required to disclose by whom he was em- ployed,^ and he may disclose terms of compromise offered by him to his client's creditors,^ and he may be examined as to the handwriting of his client, if a knowledge thereof is acquired without any communication from him.* An attorney who draws up a will is competent to testify as to its contents in order to set it up as a lost will,^ and he may be required to disclose collateral facts, as that a bond was lodged with the client by way of in- demnity, or that he expressed himself satisfied with certain security.^ Where the attorney and client both engage in com- mitting a wrongful act, the former cannot refuse to disclose the facts of the transaction on the ground that his knowledge thereof resulted from the relation of attorney and client." A communication made by a client to his attorney to obtain information as to a matter of fact, and not for the purpose of asking him his legal advice, is not privileged ; where, therefore, a trader, at the suggestion of his attorney, called a meeting of his creditors, to be held at a given time and place, and on the morning of that day went to the attorney's office, and inquired of him whether he could safely attend the meeting without be- ing arrested for debt, and the attorney having advised him to remain at the office until it was ascertained whether the creditors would engage to give him a safe conduct, the trader remained at the office accordingly for upward of two hours to avoid be- ing arrested by some one of his creditors, until after the attor- ney had attended at and returned from the meeting, it was held that what passed between the attorney and the trader was ad- missible in evidence, and might be disclosed by the attorney on 1 Cleave /■. Jones, 7 Ex. 421; 21 Law J. Ex. 105. 2 Martin /•. Anderson, 21 Ga. 301; Brown r. Payson, K. H. 443; Satterlee v. Bliss, 36 Cal. 489; Gower v. Emory, 18 Me. 79. 3 M'Tavish v. Dunning, Antb. 82, 113. 4 Johnson v. Daverne, 19 Johns. 134. 6 Graham t). O'Fallon, 4 Mo. 338., c Heister i'. Davis, 3 Yeates. 4. " Dudley r. Beck, 3 Wis. 274. 282 PRIVILEGED COMMUNICATIONS. § 151 his being called as a witness in a cause where the question was, whether the trader had committed. an act of bankruptcy on that occasion.^ The attorney conducting a cause in court may be called as a witness by the opposite side, and asked who employs him, in order to show the real party and let in his declarations.^ To prove the identity of the defendants the clerk of their solicitor is a competent witness to that fact, though he knows nothing of the defendants but from his intercourse with them professionally in conducting a suit in chancery.^ An attorney is bound to dis- close, when called as a witness by the adverse party, the con- tents of a notice which he received to produce a paper in the hands of his client.* The court will not permit an attorney to allege that his client told him before an action brought that he intended to waive a forfeiture on which he supports his action. Where two parties in dispute have one attorney, a communica- tion by one to him in his common capacity may be used by the other.^ A plaintiif may call the former attorney of the defend- ant, to prove an offer by him, on the part of his client, to settle an account, and to pay a sum of money as due to the client.^ As the rule extends only to cases where attorneys act in their professional capacity, they may be examined like any other wit- esses as to facts, and collateral matters with which they became acquainted before they were addressed in their professional character,^ or where, they have made themselves parties to the transaction, or which they must have known without being in- trusted with the cause.* Thus, an attorney who prepared deeds which were granted on an usurious consideration was comjjelled to testify in order to prove the usury.'-' An attorney may be compelled to prove that his client signed and verified an answer, upon which the client has been indicted 1 Bram«-ell v. Lucas, i Dowl. & It. 3B7; 4 Barn. ^^' C. 7-i."). ■•i Levy c. Popt, Jlodily X: M. ilO. 3 Studdy r. Sandfvs, 3 Dowl. & R. 347. < Spenueley «. Scliuleuberg, 7 East, 357; 3 Smith, .iSJ. 5 Baugh r. Crodocke, 1 Moody & U. 182; Oleevt^ r. Powell, 1 Ibid. 228. 6 Turner r. Raylton, 2 Esp. 474. ' r. , 1 Vent. Iil7; 10 Mod. 40; 4 Durn. & E. 7.'iii. »Duftiu c. Smith, Peake, 108; 5 Esp, 52; Bull. X. P. 284. ''IJulHn c. Sniitli, Peake, 108. § 162 PRIVILEGED COMMUNICATIONS. 288 for perjury.' So, a knowedge of a client's handwriting, ob- tained by his attorney from having witnessed his execution of the bail-bond in the action, is not a privileged communication, when the attorney is called on the part of the plaintiff , to prove the defendant's handwriting, on the trial.^ It seems that a let- ter written by an attorney to his client, and produced with the client's signature indorsed upon it, is evidence against the client.^ A prisoner was indicted for forging a will. The forged in- strument had been given by him to his attorney, ostensibly for professional purposes, but in the opinion of the judge, with some very different object. An objection that it was a privi- leged communication and could not be read was overruled.* A, being charged with embezzlement, retains B, a barrister, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of B's employment. This being a fact observed by B, in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, is not protected from disclosure in a subsequent ac- tion by A against the prosecutor in the original case for malicious prosecution.^ § 152. Disclosures alloTwed for protection of attorney. — Although an attorney cannot, without the consent of his client, be compelled, and has no right, to disclose any fact which may have been commixnicated to him by his client solely for the pur- pose of obtaining his professional assistance or advice, still this rule is not to be carried to the extent of depriving the attorney of the means of obtaining or defending his own rights. In litiga- tion between attorney and client, if the disclosure of a privileged communication becomes necessary to the protection of the attor- ney's own rights, he is released from those obligations of secrecy which the law places upon him. He should not, however, dis- 1 Doe d. Jupp (1. Andrews, Covvp. 8^5. 2 Hurd V. Moring, 1 Car. & P. 37L'. 3 Meyer's Assignees v. Sexton, 2 Stark. 274. ■» Reg V. Jones, 1 Den. C. C. IBH; 2 Car. & K. 234. « Brown n. Foster, 1 Hurl. & N. 73G; Wharton on Evidence, sec. 577, note':!. 284 PRIVILEGED COMMUNICATIONS. § 153 close more than is necessary for his own protection. For in- stance, if a client makes a private and confidential statement of facts by letter to an attorney employed to conduct a suit, induc- ing him to take a particular course with the suit, which proves eminently disastrous, and he is afterward prosecuted by his client for unskillful management of the cause, it would seem that he ought to be able to produce the letter in his justification. ^ § 153. Professional employment necessary. — The true principle in reference to privileged communications between at- torney and client is that, where the attorney is professionally em- ployed, any communication made to him by his client, with reference to the object or the subject of such employment, is under the seal of professional confidence, and is entitled to pro- tection a? a privileged communication. Such appears to be now the settled rule of the courts of England ; although, as we have seen, it was at one time attempted to confine the privileges to communications made in the prosecution or defense of a suit which had been, or was about to be, commenced.^ But, to set the privilege in oi^eration, the professional relation must exist, and some kind of professional employment is necessary.^ Knowledge of the matter must be acquired by reason of the relation, not merely during its existence, and knowledge acquired from a plaintiff, during the existence of the relation of attorney and client between the attorney and defendant, will not prevent the attorney from testifying against the plaintiff.* So where the attorney is consulted merely as a friend and not in a professional character, and neither the attorney nor the person consulting 1 Mitchell V. Bromberger, a Nev. 34.5; Itochester Bank r. Suydam, 5 Ho\y. Pr. 254; Ware v. Baird, 12 Ind. 318. 2 Bank of Utica i. Mersereau, 3 Barb. Cli. 5iio, per Walworth, Chancellor; Cromack v. Heathoote, a Brod. & B. 4; Greenough v. Gaskell, 1 Mylne & K. 98; Herring ?■. Cloberry, 1 Pliill. 91; Coveney v. Tannehill, 1 Hill, 33; Parker o. Car- ter, i Munf. 273. 3 Granger v. Warrington, 8 111. 299; Gillard r. Bates, li Mees. & W. 547; Kex v. Brewer, 6 Car. & P. 3(J3; Hill i\ Elliott, 5 Ibid. 43(i; Farqnand r. Knight, 2 Mees. & W. 100; Annesley r. Anglesea, 17 How. St. Tr. 1221; Bramwell v. Lucas, 4 Dowl. & E. 307; 2 Barn. & C. 745; Bogert i\ Bogert, 2 Edw. Ch. 399; Rogers t). Dare, 1 Wright, 130. * Thompson v. Wilson, 29 Ga. 539; Chappell v. Smith, 17 Ga. 68; Montgomery V. Morris, 32 Ga. 173; McDougald v. Lane, 18 Ga. 444. § 154 PRIVILEGED COMMUNICATIONS. 285 supposes the professional relation to exist between them.i So where no legal advice is asked or given.^ So as to a communica- tion voluntarily made to counsel after he has refused to be em- ployed by the party making it.^ A communication, then, is not privileged unless the person to whom it is made is acting for the time being in the character of legal adviser of the person who makes it. The communication must also be made for the purpose of obtaining professional ad- vice or aid in the matter to which the communication relates.* Communications as to facts of a suit, made to the attorney therein by one who is a nominal party but has no interest in the suit, are not privileged from being disclosed in evi- dence.^ § 154. Formal T-retainer not necessary. — While the pro- fessional relation must exist, and some kind of professional em- ployment is necessary, still a former retainer is not necessary to constitute a relation whose communications the law will treat as inviolable.^ It is enough to enable the protection of the law to apply, that a legal adviser is sought for the purpose of confi- dential professional advice, with a view, either to the prosecution of a claim or a defense against a claim. '^ The protection has been even held to reach cases in which a 1 Goltra V. Wallcott, 14 111. 89; Borumt). Fouts, 15 Ind. 50; Hoffman v. Smith, 1 Caines, 157; Thompson v. Kilborne, 28 Vt. 750. 2 De Wolf V. Strader, 26 111. 225 ; Hatton v. Robinson, 14 Pick. 416. 3 Setzer v. "Wilson, 4 Ired. 501. ^ Chew V. The Bank, 2 Md. Oh. 231; Alderman v. People, 4 Mich. 414; Milan v. State, 24 Ark. 346; Pierson c. Steortz, 1 Morris, 136; Rogers v. Dare, Wright, 136; Beeson v. Beeson, 9 Pa. 279; Brandon «. Gowing, 7 Rich. 459; Flack's Admr. V. Neill, 26 Tex. 273. 5 Allen, Adams & Co. v. Harrison, 30 Vt. 219. To charge a counsellor at law with offering himself as a witness, in order to divulge the secrets of his client, is libelous, and it is not a sufficient justification that he disctlosed matters communicated to him by his client, which had no re- lation or pertinency to the cause in which he was engaged. (Eiggs v. Denniston, 3 Johns. Cas. 198.) 6 Wharton on Evidence, sec. 578; Ross v. Gibbs, Law R. 8 Bq. 522; Foster v. Hall, 12 Pick. 89; Beltzhoover v. Blackstock, 3 Watts, 20. ' Ross V. Gibbs, Law R. 8 Eq. 522 ; Wilson «. Railroad, Law R. 14 Eq. 477 ; Mineti:. Morgan, Law R. 8 Ch. 361; Sargent v. Hampden, 38 Me. 581; March v. Ludlam, 3 Sand. Ch. 35. But see Wilson v. Rastall, 4 Term Rep. 733. Communications by a married woman to her husband's attorney are privi- leged. (Scranton v. Stewart, 52 Ind. 68.) 286 PRIVILEGED COMMUNICATIONS. §§ 155-6 person has been consulted, under the belief that he was a pro- fessional lawyer, which he really was not ; ^ and also to cases where the communications were made under the erroneous be- lief that the party consulted had consented to act as counsel.^ An attorney, however, has been compelled to testify as to non-confidential statements made to him, before retainer, by one who afterward became his client.^ An injunction of secrecy is not necessary to protect the communications.* The law will presume, if necessary, that the injunction was given. § 155. Mode of imparting privileged information. — The mode in which the information is communicated — whether by an oral statement of facts, or by delivering a written instrument — is not important. The principle is the same, in whatever way the information passes. The policy of the law allows a man to make the best defense in his power. Whatever may be his de- linquency, he is permitted to confer freely with his counsel, and to place in his hands any paper touching the matter in question without the peril of having his confidence betrayed under the forms of law. The attorney may be called to prove the exist- ence of a paper, and that it is in his jjossession for the purpose of enabling the other party to give parol evidence of its con- tents. But he cannot be compelled to produce or disclose the contents of a paper which has been deposited with him by his client. In one case, Lord Mansfield said that instead of pro- ducing the paper and obeying a subpoena duces tecum, the attor- ney ought, immediately upon receiving the subpoena, to have delivered the papers uji to his client.^ § 156. Effect of the client's calling the attorney as a "Witness. — A party who testifies himself and who calls as a wit- ness one who has been his legal counsel, and who is not exani- 1 Galley v. Richards, If) Beav. 401. Contra, In re Bellis, 3 Ben. 386; Sample v. Frost, 10 Iowa, 266. 2 Smith V. Fell, 2 Curt. 667. 3 Gutts V. Pickering, 1 Vent. li)7. * Wheeler v. Hill, 16 Me. ■f2'J. i> Goveney v. Tannahill, 1 Hill, Jl.'i ; Brandt i\ Klien, 17 John, Xl5 : .Tackson r. McA'ey, IS .John. 330; Hex c. Smith, 1 Phil. Ev. 14-2; Balrd v. Aekerman, 5 Esp. 11!>. Ser Bovan v. Waters, I Moody & M. 325 ; Eicke r. Nokes, Iliid. 303 ; Dur- kee r. Leland, 4 ^'t. 612; Wright c. Mayer, 6 Yes. 280; I!ex v. Dixon, 3 Burr. 1G87. § 157 PEIVILEGED COMMUNICATIONS. 287 ined or cross-examined iis to conversations witli his client, may object, when the counsel is called as a witness by the other party, to his testifying in regard to such communications. So where the attorney so called in chief was not then asked as to his communications with his client, but he was cross-examined by the defendant's counsel as to all matters of fact which came to the client's loiowledge before the execution of the deed — and after the evidence was all in, the attorney was recalled and asked by the defendants what conversations he had as counsel with the plaintiff in reference to making the deed and giving the receipt, and for what reason he advised the delivery of the deed — it was ruled that what passed between counsel and client was not ad- missible, and the evidence was excluded, although it was con- tended that the exclusion of the evidence offered was a privilege which the client might waive, and that it was waived by the client's becoming a witness. This alone, it was held, did not amount to a waiver.^ § 157. Cross-examination of attorneys. — But where a party calls his solicitor as a witness to the communication, the other side may cross-examine on the particular point as to which' he was examined in chief, but not as to others concerning which he did not testify.^ An attorney may be compelled on cross- examination by interrogatories to produce letters relating to the subject-matter, if he does not state that tliey are confidential.^ The court refused to restrain a discharged attorney from giv- ing evidence before another court, leaving it to the latter to de- cide whether the evidence was the subject of confidential com- munication, and therefore protected.* The attorney who desires to demur to interrogatories on the ground that an answer would divulge the secrets of his client, must do so in writing, and formally ; a mere statement to that effect, in answer to the inter- rogatory, seems not to be sufficient. Such a statement is, how- ever, an answer under oath, and if false, an indictment for per^ jury might be sustained on it.*' 1 Montgomery v. Pickering, ll(i Mass. 227. - Vailliant v. Dodemead, 2 Atlf. 524; Crittenden v. Strotlier, 2^rancli C. C. -Kl-l. 3 Atlsinson c. Atkinson, 2 Adams, 469. '■ Beer v. Ward, 1 Jacob, 77. 5 Morgan v. Sliaw, 4 Mod. 54. 28.8 PRIVILEGED COMMUNICATIONS. § 158 " A party who offers himself as a witness, and undertakes to answer certain interrogatories, cannot, it has been ruled, i-efuse to answer pertinent cross-questions on the ground that they touch confidential communications from himself to his counsel. It is otherwise, however, when the ^vitness has not waived his priv- ilege by a partial answer involving the subject-matter of his communications." ^ At the common law, the party was neither competent nor compellable to testify ; hence, such communications were effectu- ally locked at the common law, and could not be revealed at all. While a statute may make parties both competent and compella- ble to give evidence, it should not be construed to open the door to a full inquiry into privileged communications. Counsel can set up the privilege notwithstanding the statute.^ § 158. A lawyer making himself attesting witness loses his privilege — that is to say, when the client obtains the law- yer's signature as an attesting witness to an instrument executed by the client, the lawyer is compelled to prove his signature, his privilege in this respect as a professional man yielding to his duties as a witness.^ But the surrender is limited to the mere act of attestation ; and an attorney who has signed as attesting witness a deed whose bona fides is contested, though he may be asked as to the attestation, is still privileged as to any in- formation derived by him from his client as to the concoction of the instrument.* 1 Wharton on Evidence, sec. 479; Woburn v. Henshaw, 101 Mass. 193, affirm- ing Commonwealth «. Mullen, 97 Ibid. 54S; Montgomery v. Piclvering, 116 Mass. 229. 2 Barker v. Kuhn, 38 Iowa, 395; Brand v. Brand, 39 How. Pr. 193. 3 Wharton on Evidence, sec. 592; Sandford v. Remington, 2 Ves. 189; Doe u. Andrews, 2Cowp. 845; Robson v. Kemp, 5 Esp. 53. 4 Wheatley «. Williams, 1 Mees. & W. 533; Turquand v. Knight, 2 Ibid. 98. It is said that agents, not lawyers employed to collect testimony in preparation for a trial, are privileged ; and so are communications between a party or his legal adviser and witnesses, and so communications between the parties, with regard to the preparation of evidence, are also privileged. Wharton on Evi- dence, sec. 593; Preston c. Carr, 1 Younge & J. 175; Goss o. Gibbs, Law R. 8 Eq. 522; Hare on Disc. 2ud ed. 1876, 151, 152; Curling t). Perring, 2 Mylne & K. 380; Story V. Lennox, 1 Mylne & C. 525; Llewellyn v. Boddeley, 1 Hare, 527; Lafone 11. Company, 4 Kay & J. 34 ; Gandee v. Stanstield, 4 De Gex i*t J. 1 ; Daw ti. Ele v, 2 Hem. & M. 725; Phillips c Routh, Law B. 7 C. P. 289; Wilson v. Kailroaili Law R. 14 Eq. 477; Hamilton v. Nott, Law R. IB Eq. 112; Allen v. Roydeu, 4;i §§ 159-60 PRIVILEGED COMMUNICATIONS. 289 § 159. Effect of presence of both parties. — The state- ments of parties made in the presence of each other may be given in evidence by attorneys, because such statements are not in their nature confidential, and cannot be regarded as privi- leged. And a communication made to an attorney by two per- sons, for whom he was counsel, in a controversy with a third person, has been allowed to be testified to by the attorney, in a contest between those two for whom he was counsel.^ The rea- son of the general rule does not apply to such a case, because the attorney is then under equal obligation to both. Where two contracting parties employ an attorney to draw up their contract, and make their communications to him in the presence of each other, each thereby waives, as against the other, his right to treat those communications as confidential, and each is entitled, in asserting his rights under the contract, to a disclos- ure of its stipulations from the attorney.^ The exception that communications made in the presence of all the parties to the controversy are not privileged includes a case where the communications were made by the plaintiff's assignor, in trust for creditors, in the presence of the defendant, to the at- torney employed to draw the papers between them.-^ § 160. To whom the privilege extends. — As a general rule, the privilege from testifying to facts confidentially commu- nicated to the witness is confined to professional men, when act- ing in their professional capacity, and does not extend to confi- dential communications made to others in the way of business ; and the privilege does not even extend to all disclosures made by a client to his attorney, but is limited to those which are made in professional business, pending the relation of counsel and client.* Thus, if one party goes to another, who is neither an at- Law J. C, P. 206. But there are intimations in England that agents have no such privilege. (Glyn v. Caulfield, 3 Macn. & G. 463; Goodall v. Little, 1 Simons, Xew Series, 135; Raynor v. Ritson, 6 Best & Smith, 8S8; Colman i'. Truman, 3 Hurl. &N. 871.) iRice V. Rice, 14 B. Mon. 417. ■i Parish j'. Gates, 29 Ala. 254; Warde /•. Warde, 5 Eng. L. & Eq. 217; Whiting ,,'. Barney, 30 N. Y. 330. 3 Britton c. Lorenz, 45 N. Y. 51. 4 Dixon V. Parmelee, 2 Vt. 185; Wilson c. Rastall, 4 T. R. 753. A. & C— 19. 290 PRIVILEGED COMMUNICATIOXS. § 161 torney nor pretends to be one, to ask him to make a conveyance of property, and that other writes to a relation of his who is an attorney, and on receiving an answer informs the party that he cannot convey, this is not a privileged communi cation. ^ So, with a person to whom a party, supposing him to be an attor- ney, makes confidential communications respecting his cause, he is bound to give evidence of them, if called as a witness. ^ But it has been held that the agent of an attorney cannot be examined as to communications with the client on the subject of the action, in order to jjrove his identity.^ The privilege of not disclosing communications between attorney and client belongs to the client and his representatives, as against third parties, but does not be- long to the representatives intersex A communication made to an unprofessional person, merely employed to assist another at a trial, is not privileged, nor communications made to athirdj^arty generally, even though they are made to an att(3rney in the presence of a third party. The third party must testify.^ Counsel consulted as to family or other arrangements, without reference to litigation, are placed under the restriction,^ and can- not be compelled to testify. The attorney may be required to disclose facts which he learned from other sources than his client;' so the attorney is bound to testify, like anv other wit- ness, to statements made by the client to other persons, or bv other jDcrsons to the client, or to each other, in his presence.* § 161. Privilege includes clerks, interpreters, and sometimes conveyancers. — It is laid down that whoever actu- ally represents a lawyer in conference or correspondence with the client, is under the same protection as the lawyer himself:^ 1 Pritchard v. Eoe, 8 Car. ^r P. 99. - Fountain r. Young, ij Esp. 113. See Shore r. Bedford, 5 Man. t^- G. 271. 3 Parkins r. Hawkshaw, 2 Stark. 239. i Gresley'r. Monsley, 2 Kay & .T. 288; 2 .Jur. X. S. l.JC>. 5 Brayton r. Chase, 3 AVis. 45ii. fi Bex V. "Withers, 2 Camp. STS ; Walsiusham v. Goodricke, 3 Hare, 12i ; Des- borough i\ Kawlins, 3 Mylne & C. 51.5 : Carpmael v. Powis, 9 Bear. l(i, overrul- ing "Williams r. JMudie, 1 Car. & P. 158, and Clark i-. Clark, 1 Moody & E. 3 : Wadsworth v. Hanshaw, 2 Brod. .S: B. 5. ' Bogert V. Bogert, 2 Edw. Ch. 399 ; Hunter v. "SVatson, 12 Cal. 363 ; Eogers r. Dare, "SVright, 1 Ohio, 13i;; Chirac c. Keinieker, 11 "Wlieat. 2sn. s Gallagher c. Williamson, 23 Cal. 331. " Parker v. Hawkshaw, 2 Stark. 239; Du Barre v. Livette, Peake E. 77 ; Cheutoii r. Frewen, 2 Drew & S. 390. Bunbury v. Bunbury, 2 Bear. 173: "Walker v. "Wild- § 161 PRIVILEGED COMMUNICATIONS. 291 and the rule extends to an attorney's clerk acting on behalf of his master, as well as to the attorney himself.^ A lawyer's executor has also been considered privileged,^ but not an ordinary business agent, whom the client consults, and who is neither a lawyer nor represents a lawyer. A law stu- dent does not come under the category of clerks ; and should a client consult a mere student who is not admitted, even though he erroneously thought the student a practicing attorney, the communications are not privileged.^ Interpreters present at conversations between foreignei-s and their attorneys for the purpose of interpreting, are bound to the same secrecy as the attorneys themselves, and will hot be com- pelled or allowed, without the client's consent, to divulge the facts which they thus learn.^ A scrivener, appointed to raise money, has been held privileged,'^ and so has a conveyancer employed to draw a deed, especially if he be an attorney at the same time,'' for then he is considered as acting in the line of his profession, and bound to conceal the facts disclosed bv the person who employs him ;' and the priv- ilege extends to a conveyancer who is consulted to draw deeds, man, 6 Madd.' 47 ; Goodell v. Little, 1 Sim. N. S. 155; Lafone c. Talliland Islands Co., 4 Kay & J. 34; Taylor v. Forster, 2 Car. & P. 195; Cliant v. Brown, 9 Hare, 780; Jlills r. Odily, 6 Car. & P. 731; Eoss v. Gibbs, Law R. 3 Q. B. 91; Fenner v. R. R., Law E. 7 I,). B. 7(J7; Jackson v. French, 3 Wend. :!o7: Brand v. Brand, 39 How. Pr. 193; Sibley v. Waffle, 16 N. Y. ISO. 1 Taylor v. Foster, 2 Car. ^: P. 195; Bowman v. Norton, 5 (.'ar. ,& P. 177 ; Jlills V. Oddy, 6 Ibid. 72S; Jackson v. French, 3 Wend. 337. But the clerk, like the attorney, may be asked whether he has received a iiar- tieular paper from the client. (Eicke v. Nokes, Muody & M. 303; Goodliglit v. Bridge, — Loftt. 27. ) ^Fenwick r. Eced, 1 Jler. 114; 'Wharton on Evidence, sec. 582. 8 Barnes c. Harris. 7 (/usli. 57(j; Fountain v. Young, 6 Esp. 113; Andrews r. Sol- omon, 1 Peters C. C. 35(3; Holman .. Kimball, 22 Vt. 555; Landsberger c. Gor- ham, 5 Cal. 450; Sibley v. Waffle, 16 N. Y. ISO. * Dn Barre r. Livette, Peake, 77; Goddard r. Gardner, 28 Conn. 172: Jackson V. French, 3 Wend. 337; Taylor c. Foster, 2 Car. & P. 195; l^ountain v. Young, 6 Esp. 113; Parker r. Carter, 4 Munf. 273; Brayton n. Chase, 3 Wis. 274. swharton on Evidence, sec. 581; Boruin o. Fonts, 15 Ind. .50; Turquand v. Kniglit, 2 Mees. & W. 100. But see Coon v. Swan, 30 Vt. 6; De Wolf v. Strader, 26 111. 225. Linthicum i\ Remington, 5 Crancli C. ('. 546; Parker v. Carter, 4 JIunf. 273; Carpmael v. Fowls, 1 Phillim. 687; Cromack r. Heathcote, 2 Broil. &B. 4. See Turquand r. Knight, supra. See, contra, Hatton r. Robinson, 14 Pick. 416; Han- del V. Y'ates, 48 Miss, 685; Mathews' Estate, 1 Phila. 292. ' Parker v. Carter, 4 Munf. 273. 292 PRIVILEGED COMMUNICATIONS. § 162 if the communication be made in a professional capacity, whether he accepts the employment or not.' But it has been held that conveyancers, not being attorneys, are not privileged.^ § 162. A client also protected in his communications to counsel.^^^" The question," says Wharton, " whether a cli- ent can be compelled to disclose his confidential communications to his legal adviser, draws peculiar interest from the statutes en- abling parties to be called as witnesses by their opponents. It is obvious that the Kuard against the disclosure of such commu- nications by counsel would be a mockery if the client could be compelled to disclose that as to which counsel's lips are sealed. It would be absurd to protect by solemn sanctions professional communications when the lawyer is examined, and to leave them unprotected at the examination of the client." The English House of Lords, however, in a case of comparatively early date, intimated that a client might be compelled by bill in equity to disclose any communications made by him to his counsel before litigation had been invoked ;2 but in England this distinction has been deplored, if not repudiated,* and in the United States has never been tolerated. The rule may then be stated to be, that the protection is also extended to clients. A party is not obliged as a witness to disclose any consultation he may have. had with his counsel in relation to his business.^ The true view is, that communications which the lawyer is precluded from disclosing, the client cannot be compelled to disclose.^ Where, however, a party offers himself as a wit- ness, it seems that he may be asked as to his communications to 1 Crissler r. Garland, 19 Miss. 136. ■' Estate of Matliews, 1 Phila. 292; Machette v. "W'anless, 2 Colorado T. 169; Randel ;). Yates, 48 Miss. 685. An attorney, consulted as a friend and not as an attorney, maybe compelled to testify. Annesley i\ Anglesea, JIacnally, 2il; Hoffman /•. Smith, 1 Caines, 157. 3 Wharton on Evidence, sec. J8:i; Radcliffe v. Pursman, 2 Br. P. C. C. 51-1. < "Walsingham r. Goodricke, 3 Hare, 127 ; Jleath r. "Winchester, 10 Bligh, 375; Walker r. Wildman, 6 JIadd. 97 ; Preston c. Carr, 1 Young & ,T. 175; Pearse c. Pearse, 1 1)e (iex & S. 24:; Miner /'. Morgan, Law R. .S Ch. o61 ; In re Macgregor Laird, 1 Ad. & E. 307. 6 Hemenway w. Smith, 28 Vt. 701. 6 Wharton on Evidence, sec. 583; Thompson c. Falk, 1 Drew. 21; Vent «). Pa- cpy, -1 Russ. 193; Combe «. London, 1 Kuss. 631; Holmes ;'. Baddeley, 1 Phill. 476; Hemenway o. Smith, 28 Vt.701; Carnes p. Piatt, 15 Abb. Pr, N. S. 337; Big- ler (1. Reglier, 43 Ind. 112. § 163 PRIVILEGED COMMUNICATIONS. 293 his counsel as to that part of the case he undertakes to prove.' Communications made to a prosecuting attorney, relative to criminals or suspected persons, are privileged, and cannot be di- vulged without the consent of the person making them. But if he voluntarily testifies to the actual conversation, the prose- cuting attorney may testifj' in regard to it.^ § 163. Privilege applied to documents. — For the same general reasons for which an attorney is not permitted to dis- close communications, he is not obliged, when intrusted by his client with papers relating to the subject of professional confi- dence, to produce them ; nor can he be compelled, as a witness, to state their contents.'' And a party, wishing to avail himself in evidence of a paper in the possession of the attorney of his adversary, must give reasonable notice to produce it ; and notice at the trial is not sufficient. He cannot have the benefit of the evidence by subpcenaing the attorney to produce it, and compell- ing him to testify if the document was delivered to him by his client.* But, for the purpose of letting in secondary evidence, the adverse attorney may be asked if he has possession of a 1 'Woburu c. Henshaw, 101 Jlass. liiL). A client having given evidence in cliief in liis own behalf, cannot, on cross- examination, be comf)elled to divulge statements made by him when consulting as a client an attorney at law. Communications made in consultation by a client to his attorney are privileged and protected from inquiry, \'\iien the client is a witness, as well as when the attorney is a witness. Statements made by a client to his legal adviser are privileged, though no action is at the time pending or contemplated, oonccruing the matter of which such statements are made. Bigler r. lieyhor, 43 Ind. IVl. 2 Oliver r. Pate, 413 Ind. 132. In Massachusetts, it is said, that where a partj' oifers himself as a witness as to what he said to his counsel, he may be compelled to undergo a cros.s-examin- ation upon the same subject. If the client sees tit to be a witness, he makes himself liable to full cross-examination, like any other witness. And it is held that this is true even as to defendants in criminal cases. (Inhabitants of Woburn 1-. Henshaw, 101 Mass. 193; Commonwealth r. JIullen, 1)7 Mass. 545. SBottomley v. XJsborne, Peake Ad. (.'as. 99, 101; Nulls €. Oddy, 6 Car. .K: P. T2H: Bate V. Kinsey, 1 Cromp. M. &B. 3S: Marston o. Downes, 6 Car.& P. 381; \\'alker V. Wildman, 6 Madd. 47; Cook. v. Plearn, 1 Aloody ^^ E. 201 ; Jackson / . Denisou, 4 Wend. 558; Jackson v. Burtis, 14 Johns. 391; Kobson v. Kemp, 5 Esp. 53. ■tMcPherson v. Rathbone, 7 Wend. 216; Dixon ,-. Parmelee, 2 Vt. 1S5. See, also, Bonesteel v. Lynde, 8 How. Pr. 221); Trotter v. Latson, 7 Ibid. 2(il; Courtail V. Thomas, 9 Barn. ^: C. 288; Amey v. Long, 9 East, 473; Bask r. Lewis, Madd. 29; Mitchell's Case, 12 Abb. Pr. 204. 294 PRIVILEGED COMMUNICATIONS. § 163 certain document/ and when it was put into his hands ; but not as to its situation or apjjearance.^ The names, times, or dates contained in a written instrument, though not known from the communication of the client, yet come to the knowledge of the attorney from the delivery of the instrument by his client, are privileged.-' An attorney cannot be compelled to produce a will which he holds as attorney for a devisee claiming under it;* nor is the attorney for a party bound to state the contents of a document of which he first obtained a knowledge by having read it at the suggestion of his counsel in the course of a consultation in the cause. ^ Where it appeared that a paper had been delivered to a counsel by his client, with instructions not to make use of it in court, it was held that he was not bound to produce it in evidence in another cause, in which he was also counsel,'' much less in the pending action, or testify to its contents. An attorney, having been intrusted with certain papers by his client, which, after the termination of the suit, were left with the attorney by his client for the benefit of a party to another cause, for whom he was also attorney, he was held not bound to produce them in evidence." Xeither the docu- ments, nor consultations in reference to them, can be called for.' " When a solicitor has in his possession a document for his client, he cannot, against the will of his client, be compelled to 2Droduce it, even by a person who has an equal interest in it with the client.^ But a solicitor may be asked whether he has papers of his client in court, and if by his answer, which is compulsory, he admit the fact, secondary evidence of their contents may be given if the originals are not produced. ^° And although counsel 1 Coats r. Bircli, 2 Ad. & E. N. S. 252; 1 (Jale & D. (147; 5 Loudon Jurist, 1009; Bevan v. Waters, iloody & M. 2:i5. 2 Driggs V. Rockwell, 11 Wend. oOi; Wlieatley c. Williams, 1 Mees. & W. ."i.io. ^ Beard o. Aokerraan, 5 Esp. 119; Bate ij. Kinsey, 6 Jloody & R. 42. ■* Carter '•. Lames, 2 Moody ..^t R. 47. 5 Iiavies v. ^^'ater, 9 Mees. .\: A\'. 608. 6 Lyud V. Judd, 3 Day, 490; Dale c. Livingston, 4 Wend. .'i.W. ' Jackson D. Burtis, 14 John. 391. 8 FoUett V. Jeft'eryes, 1 Eng. L. & E. 172; Goodall .■. Little, 3 Ibid. 79. See Warde v. Warde, 5 Ibid. 217. ' " Wharton on Evidence, sec. ri.S,5; Newton r. Chaplin, 10 I'um. B, 3,56; Lauig v. Barclay, 3 Stark. R. 42; Volant i\ Soyer, 11! Com. B. 231; Bargaddie Coal Co. r. Wark, 3 Macq. S. C. 1168; Crosby r. Berger, 11 Paige, 377. 1" Wharton on Evidence, sec. 585; Dwycr v. Collins, 7 Ex. 039: Brandt r. Klain, 17 Johns. :i35; Phelps v. Prew, 3 El. & B. 430; 23 Law J. (J B. 140. § 163 PRIVILEGED COMMUNICATIONS. 295 can be compelled to produce any paper whose production would have been obligatory on the client so far as to let in secondary evidence of contents, yet the fact that the papers were commu- nicated to him by his client for his professional opinion, is a good excuse for their non-production. ^ This is peculiarly applicable to cases where the lawyer is called upon by subpoena to produce his client's papers, his client being a stranger to the suit. AVere it not so, no man's titles, so it is argued in England, could be safe from fishing explorations for the purpose of discovering defects. In this country, under our registry system, the reason is less applicable, but the principle still obtains. "- " If a legal adviser permits his client's papers to pass out of his hands into those of strangers, or if such papers are in any way extracted from his custody, they may be put in evidence by the party by whom they are held as against the client. So far has this been pushed that it has been held that if an attorney permits a witness to see such Avritings, such witness, not being a clerk of the attorney or legal adviser of the client, may be called to give secondary evidence of the writings, due notice being first given to produce them on trial. ^ It is otherwise as to papers passing into the hands of the attorney's agents or representa- tives, the papers in such hands being entitled to the same pro- tection they enjoyed when in the hands of the attorney."-^ An attorney or counsel, who, as such, has been intrusted with papers or documents, is not bound to produce them in evidence on the call either of the opposite party or of a third person.^ It has been held that papers intrusted to an attorney in professional confidence are not necessarily to be deemed confidential commu- nications, and their production can be resisted only when a con- troversy exists or is anticipated between parties in relation to the subject on which communications were made to the attorney 1 Kamsbotliani v. Senior, Law E. 8 Eq. 575; Ex parte Campbell, Law R. 5 Oh. Ap. to:.!: Rhoades «. Seliu, 4 Wash. C. C. 718; Durkee r. Leland, 4 Vt. 612; Dwyer V. Collins, 7 Ex. 639; Bevan r. \V'aters, 1 Mees. .S: ^\'. 2H5; Doe c. Harris, 5 Car. & P. 592: Doe /■. Gilbert, 7 ^Mees. & W. 102; Doe v. Langdon, 12 Ad. & E. N. S. 711. 2 Wharton on Evidence, sec. 585; Rex v. Hunter, 3 Car. & P. .591. 3 Lloyd V. Mostyn, 10 :Mees. & W. 481. But see Fisher u. Henning, 1 Ph. Ev. 170. ■» Wharton on Evidence, sec. 586; Fenwick c. Reed, 1 Mer. 114, 120. 5 Kellogg u. Kellogg, 6 Barb. 116; Jackson v. Burtis, 14 Johns. 391; Durkee v. Leland, 4 Vt. 612; Lynde /■. Judd, 3 Day, 49il. 296 PRIA'ILEGED COMMUNICATKJNS. § 163 on the documents intrusted to hiin.i But this is but another way of stating that the communications must be restricted to pending suits, and we have already attempted to demonstrate that this is not the correct rule,^ As to the production of papers, the possession of the attorney is deemed the possession of the client. When papers are re- ceived in a confidential and professional capacity, their contents need not be disclosed. The doctrine has been applied to deeds, bills of sale, and other papers.^ They need not be produced even for the inspection of a grand jury.* But the paper must be produced for the purposes of identification, and the attorney must answer as to theiact of possession, so that secondary evi- dence of their contents may be given. There is a well-defined distinction between this and disclosing their contents.^ The most that can be required is to state whether or not the paper is in existence, and when and where the attorney last saw it.'' On a trial for murder, an attorney employed by the prisoner on the day of the alleged murder to draw for him certain papers — a lease and receipt — cannot be compelled to testify to the draw- ing of such jjapers by him, or to the contents thereof ; nor as to the state of either of the papers, when delivered to the prisoner, where such papers are not in any manner necessarily connected with the perpetration of any crime, and they cannot of them- selves in any way aid in the commission of any fraud or crime.^ In an action against the grantees in a deed, upon a covenant therein that they would assume and pay cei'tain specified incum- i Peck V. Williams, 13 Abb. 08. '- See ante, sec. 143 et seq. 5 Lynde v. Judd, 3 Day, 499; Mallory c. Beujamiu, 9 How. Pr. 419; Kellogg r. Kellogg, () Barb. 116; Jackson v. Burtis, 14 Johns. 391. JSte. as to combination between attorney and client to prevent inspection, People ( . Sheriff, 29 Barb. * Anon. 8 Mass. 370; Durkee v. Leland, 4 Vt. 612. AVhere note,* suggested to have been forged were delivered to an attorney in the common ci>urse of busi- ness by a client suspected of committing the forgery, the court refused to com- pel the attorney to jiroduce them for the inspection of the grand jury. (State c. Squires, 1 Tyler, 147. ) 5 People ('. Sheriff, 7 Abb. Pr. 96; Phelps c. Prew, L'4 Eng. Law and Eq. iHi; Dwyer v. Collins, 21 L. T. X. S. 22,->: Broad .'. Pitt, Moody Ov- Malkin, 233: Eicke V. Nokes, Ibid. 303. See i;iioades r. Seliu, 4 \\'usli. C. C. 71.5. ODurkee v. Leland, 4 \'t. 612; State r. Squires. 1 Tyler, 147; Anon. S Mass .379: Kingston v. Gale, 8 Vin. Abr. r)4S; Brandt r. Klein, 17 Johns. '.VXi "' Graham v. Peoijle. 6:> Barb. 468. § 163 PRIVILEGED COMMUNICATIONS. 297 brances, as portions of the purchase-money, an attorney, who drew the deed, was asked whether the deed was read to the grantees after it was drawn, and whether the question was up then as to whether the grantees would be personally liable on the deed. These questions were held not permissible, and the matters came under the head of privileged communications.^ It is the province of the court to judge whether the paper is privileged or not, and the witness is required to submit the doc- ument to the inspection of the court, and if, after reading it, the judge differs from the witness, he may, it seems, allow it to be read ; and the witness is in contempt if, after proper notice, he does not produce it for that purpose. It is for the court to de- termine whether the principle of protection extends to it."'^ After a notice to produce. — If, upon notice given to the attor- ney of a party to produce a document in his possession, he neg- lects so to do, he should not be called as a witness to prove its contents.'' If an attorney for one not a party to an action, hav- ing refused at the trial to produce a deed belonging to his client, is directed by the judge to give parol evidence of its contents, the parties to the action have no right to object to such evidence going to the jury, even upon the supposition that the judge acted erroneously.* Where a notice has been given to produce a deed, but which notice cannot be proved, the attorney for the other party cannot be called upon to jDroduce it, he having ad- mitted a receipt of the notice ; ^ and the attorney for the oppo- site party cannot be asked whether he has with him a rule of court relating to the cause, with a view to give secondary evi- dence of the rule, no notice to produce or sub23cena duces tecum havino- been served.*^ Where a deed is in the hands of an attor- ney, who holds it not merely as attorney but as a security for money owing to him from his client, and the attorney, being 1 Rogers c. Lyon, I'A Barb. 373. - Morgan c. Shaw, 4 Madd. 37; I'arklmrst r. Lawten, 3 Ibid. 121; Beer c. AVard, Jac. 77; Commonwealtli v. Braynard, 1 Thacli. V,. C. liB; Doe r. Egremont, 2 Moody & E. 38B; Copeland <,. Watts, Stark. 9.3; Bradshaw v. Bradshaw, 1 Russ, & M. 358; Walsh v. Trcvanion, 15 Sim. 578; Mitchell's Case, 12 Abb. Pr. 2(jl. 3 Bothomley v. Usborne, Peake Ad. Cas. 101; Bevan v. Waters, Moody 6:: M 235; 3 Car. &, P. 520. 4 Marston v. Downes, 1 Ad. & E. 31; 4 Nov. & M. 861; (> Car. & P. 381, 6 Read u. Passer, 1 Esp. 216; Peake, 231. « Cook V. Hern, 1 Moody & R. 20. 298 PRIVILEGED COMMUNICATIONS. § 164 called on a subpmna duces tecum, refuses to produce the deed on the ground of his own lien, the party calling for the production of the deed is entitled to give secondary evidence of its con- tents. ^ § 164. Privileged communications as applied to deeds, etc. — An attorney is not allowed to produce a deed which has been deposited with him confidentially in his professional char- acter,^ and if the deed has been obtained out of his hands for the purpose of being produced in evidence by another witness, it cannot be received, nor is a copy of such deed so obtained good secondary evidence.''^ A solicitor to a third person is bound to produce his client's lease executed by the defendant, provided the production will not operate to the prejudice of his client.* But if the reading of such a document would operate to the prejudice of a third person, the court will not expect it to be read. On an issue as to the liability of the defendants as partners, an attorney subpoe- naed to produce a composition deed, executed between them and another firm, showing the partnership, may object to the jDro- duction of the instrument, on the ground that the disclosure of its contents may prejudice the latter in dispute with others.' If an attorney be the attesting witness to a deed executed by the client he may be compelled to prove its execution," and the court will sometimes, as where an attorney attests a warrant of attorney, summarily compel him to make an affidavit of the fact,'' and an attorney may generally be compelled to prove by whom he is employed in an action,' or to identify his client : ^ and 1 Gilbert v. Ross, 7 Mees. & W. 102; 8 Dowl. Pr. 3S9; i Jm-. 321. 2 Fislier r. Hemming, 1 Phil. Ev. 1S2. 3 Fisher /'. Hemming, 1 Pl}il. Ev. 132. * Copeland c. Watts, 1 Stark. i)5. 5 Harris v. Hill, Dowl. & R. N. P. C. 17; 3 Stark. 140. In an action of cove- nant, the attorney of a third person, wlio holds the deed as such, is not hound to produce it, lint tin.' plaintiff may go into secondary evidence. Ditcher r. Ken- dricli, 1 Car. & P. 1111. Though an attorney has received a deed from his client for the purpose of the cause, he may be aslced whether he has it, in order to let in secondary evidence of its contents, in case it is not produced, as in the ease of other instruments. Coates i\ Birch, 1 Gale & D. (ji7; 5 Jur. lOO'i; 1 Dowl. X. S. 540. Avery c. Roe, « Dowl. ,-)2S; 3 Barb. Ch. 52S. " Ex parte ]\Iorrison, 9 Dowl. 94. 8 Levy V. Pope, 1 Moody ^; M. 410; Brown e. Paysou, N. H. 443; 1 Caines, 258; 11 \\'heat. 280. '■' Study r. Sanders, 2 Dowl. c>t R. 347. § 164 PRIVILEGED COMMUNICATIONS. 299 if the plaintiff in the action, to state where he lives, to state also whether or not he made a particular offer or tender to the opposite party in the cause, ^ whether a particular document is in his client's handwriting,^ or whether he has not received a notice from a third party ,^ or without any notice to produce, whether he received a particular document from the client.* The attor- ney may also be asked as to the execution of a deed in his pres- ence.® An attorney subpoenaed to produce a document at a trial may, in his discretion, refuse to produce it, on the ground that it has been intrusted to him by a client. He is neither bound to produce it nor to answer a question with respect to its nature.^ In ejectment by a rector to recover land as a parcel of the glebe, a book describing the lands subject to tithes, and a map of the glebe, were produced by an attorney and solicitor, who had been employed by J, the preceding rector, who was also owner of the advowson, to collect the tithes, and afterward to sell the advowson. The book was given to him for the former purpose ; the map with a view to the sale. The heir and the executors of J authorized him to produce them. The advow- son was sold to A, who had presented the lessor of the plaintiff. The court held that the map was not a privileged communica- tion ; and that if it was, the privilege had been waived.' In an action on a covenant in a lease by assignee of the rever- sion, the plaintiff put in a conveyance to him of the reversion, subject to mortgage debts. The defendant, in order to prove that the legal estate was out of the plaintiff, by reason of the conveyance of the reversion having been made subject to a mortgage, called the attorney of a person to whom the mort- gage had been transferred to produce the mortgage deed, under a suhpoena duces tecum. The attorney objected, and stated that he had been instructed by his client nut to produce it. The at- 1 Turner v. Raylton, 2 Esp. 474. 2 Hurd V. Morins, 1 Car. & P. 372; Alpycr r. Sexton, 2 Stark. 274; Uoe r. An- drews, 2 Camp. 843; Johnson v. Darvome, 19 .Tolms. 134. 3 Spenoeley w. Scliullenberg, 7 East, ">'>'. < ■> Eicke V. Nokes, 1 Moody & >I. 30i; Jackson i!. Burtis, 14 Johns. 391; 3 Day, 499; 4 Vt. 612. See Hibberd v. Knight, 17 Law J. Ex. 119; Marston r. Downes, , 6 Car. & P. 381. s Sandford v. Remington, 2 Ves. Jr. 189. 6 Volant V. Soyer, 13 Com. B. 2.31; 22 Law J. Com. P. 83. -I Marriott ;:. Hertford, (Marquis) 13 Jur. 632; 19 Law J. Q. B. 526. BOO PRIVILEGED COMMUNICATIONS. § 164 torney for the original mortgagee was then called to give second- ary evidence of its contents. He had a draft of a mortgage, but did not know whether it was a copy of the deed in question, un- less he knew what that deed was. The judge ordered the first witness to produce the deed, and to allow the second witness to look at the indorsement, upon which he identified it as the deed of which the draft was a copy, and gave secondary evidence of its contents. It was held that the privilege of the client was not violated by requiring the attorney to show the indorsement on the deed, for the purpose of enabling the witness to identify it.^ It is said there can be no doubt of the rule that a mortgagee or purchaser is not bound to produce his title-deeds, and may resist the production of all deeds which are muniments of title ; but it is said that this rule does not extend to the mortgage deed itself, as to which different considei'ations prevail. Also, that a solicitor employed by both mortgagor and mortgagee, and who ultimately becomes transferee of the rights previously acquired by the mortgagee, cannot set up a professional privilege as if he had acted confidentially for one only of the parties, nor resist the production of the deeds as if he were in the position merely of a third party; and a mortgagee is bound to produce the mort- gage deed for the inspection of the mortgagor. It is the mort- gage deed which conveys the property by way of pledge, and which contains the proviso for redemption, by virtue of which the mortgagor is entitled to redeem the projaerty. The mort- gage deed, therefore, is as much the evidence of the mortgagor's title to redeem, as it is of the mortagee's estate.^ A vendor had a draft of a conveyance made bv his own at- torney, from which the deeds were afterward prepared. The attorney was paid for this business by the vendor and purchaser in moieties, by agreement, but the latter emploved an attor- ney on his own part to look o^-er the draft. It remained after- ' Phelps II, Prew, 3 El. \- B. 4:j0; '2 Car. Law Rep. 14122; IS Jur. 249; 2o Law J. Q. B. 140. - Patch ti.Warcl, 1 Law R. Eq. 43G. But it is also held that ill an aotiou against a mortgagor, the attorney oi the mortgagee, ^vho has the mortgage deed, cannot be compelled to jiroduce it, if he oli,iects to do so, nor can he be compelled to give evidence of its contents; but he may be askeil for what purpose the money was raised, and secondary evidence may l)e given of the contents of the mort- gage deed. (Marston t.. Downes, 4 Ncv. \- M. 861; 1 Ad. & E. 31; 6 Car. & P. 381.) § 165 PRIVILEGED COMMUNICATIONS. 301 ward with the vendor's attorney. It was held that such draft was confidentially deposited with the latter, by the purchaser as well as the vendor, and could not be produced on a trial against the interest of the purchaser's devisees, though with the con- sent of the vendor and his attorney.^ But where, by an order of the court of chancery, made in a suit depending between a lessee and lessor, the lease was depos- ited in the hands of the lessor's attorney, the lessee being at liberty to inspect the same, upon ejectment brought by the les- see against the tenant in possession, it was held that the attor- ney of the lessor was bound to produce the lease, it not being part of the lessor's title.^ § 165. Testamentary communications. — The privilege does not apply when the question arises as to the intention of a deceased person in respect to the disposition of his estate. It is simply meant to protect the living in their business relations. Where the rights and interests of clients and those claiming under them come in conflict with the rights and interests of third persons, there can be no difficulty in applying the rule. But there is a difficulty where cases of testamentary disposition arise. The disclosure in such cases can affect no right or interest of the client. The apprehension of it can present no impediment to the full statement of his case to his solicitor, and the disclos- ures, when made, can expose the court to no greater difficulty than presents itself in cases where the views and intentions of persons or of the objects for which the disposition is made, are unknown. In the cases of testamentary disjjositions, the very foundation of the rule seems to be wanting, and in the absence, therefore, of any illegal purpose being entertained by the tes- tator, there does not appear to be any ground for applying it.^ As to disclosures of the communications made by testators, iDoe fl. Strode v. Seaton, 2 Ad. &E, 171; 4 Nev. & M. 81. ^Courtail v. Thomas, !) Barn. & C. 288; i Man. & R. 218. Wliere a dc-ed is in the hands of an attorney, who holds it not merely as attorney, but as a security for money owing to him from his client, and the attorney, being oalled on a mbpcs7M duces tecum, refuses to produce the deed on the ground of his own lien, the party calling for the production of the deed is entitled to give secondary evidence of its contents. (Doe d. Gilbert v. Ross, 7 Mees. cV- W. 102; 8 D. P. C. 389; 4 Jur. 321.) 3 Russell V. Jackson, 9 Hare, 387; VPharton on Evidence, sec. 591. 302 PRIVILEGED COMMUNICATIONS. § 165 in Eussell v. Jackson, 15 Jur. 1, 117, the contest was between the heirs-at-law and a devisee. The heirs claimed that the de- vise was upon a trust unexpressed, because illegal. The ques- tion was, whether the solicitor by whom the will was drawn should be allowed to testify what was said by the testator con- temporaneously upon the subject. The devisee claimed the benefit of the rule. The Vice Chancellor said : " When we pass from cases of conflict between the rights of a client and parties claiming under him — and those of third persons — to cases of a testamentary disposition of a client, do the same reasons apply ? The disclosure in such cases can affect no right or interest of the client, and the apprehension of it can present no impediment to a full statement to the solicitor, unless he were contemplating an illegal disposition — a case to which I shall jjresently refer ; and the disclosure when made would expose the court to no greater difficulty than it has in all cases, when the views and intentions of parties, or the objects for which the disposition is made, are unknown. In the case, then, of a testamentary disposition, the very foundations on which the rule proceeds seem to be wanting, and in the absence of any illegal purpose entertained by the testator, there does not seem to be any ground for applying the rule in such a case. Can it be said, then, that the communication is protected, because it may lead to the exposure of an illegal purpose ? I think not ; and that evidence, otherwise admissible, cannot be rejected upon such grounds. Another view of the case is, that the protection which the rule gives is the protection of the client : and it can- not be said to be for the protection of the client that evidence should be rejected, the effect of which would be to prove a trust created by hira, and to destroy a claim to take beneficiallv by the parties accepting the trust." ^ On a question of marriage and legitimacy, an attorncv. who drew a will for the alleged husband, deceased, in which the children of the connection sot up as wedlock are described as the "natural children" of the testator, may, without violating professional confidence, testify what was said by the testator about the character of the children and his relations to their mother, in interviews between the testator and himself preced- iRussellt). Jackson, 15 Jur. 1, 117: Blackburn r. Crawfords, 3 Wall. 176. § 165 PRIVILEGED COMMUNICATIONS. 303 ing and connected with the preparation of the will.^ A waiver under such circumstances has been presumed as much a waiver as if the client had expressly enjoined it upon the attorney to give this testimony whenever the truth of his testamentary decla- ration should be challenged by any of those to whom it related. A communication made by a client to an attorney, in the of- fice of the latter, in the presence of a son of the testator who lived in his family, but who had no connection with the profes- sional business of his father, was held not privileged in relation to the son.2 Where a will was brought to an attorney by the wife of a legatee named in it, for the purpose of inducing the attorney to raise money on it, the attorney who had taken a copy of the will was deemed a good witness in support of a prose- cution against the party for forging the will.^ A witness (the solicitor who drew the will propounded) hav- ing in his deposition referred to certain entries in his books with reference to the drawing of the will, and having, as required by an interrogatory, given copies of those entries and allowed the examiner to collate them with the originals, a motion to compel the witness to produce the books themselves was rejected.^ In case of a motion that certain writings should be produced which were referred to by a witness in his deposition, such wit- ness being the solicitor of the party in the cause opposing a cod- icil, the motion was resisted on the ground of privilege. It was held, first, that information collected by the solicitpr from a sub- scribed witness to the codicil is not privileged. It seems It would be otherwise if collected by the client and communicated to the solicitor. Secondly, that letters written to the principal solicitor by another solicitor, also employed by the client to collect evi- dence in the matter, and with directions to communicate it to the principal solicitor, are privileged. Third, that letters written by the testator to his solicitor with regard to a bond executed by testator in favor of the party propounding the codicil, are not ptivileged communications as between the solicitor and the ex- ecutor opposing the codicil, by whom he was also employed as his solicitor in this matter.^ 1 IJlackburn v. Crawfords, 3 Wall. 175. See Kussel v. Jackson, 15 Jur. 1-117. 2 Goddard v. Gardner, 28 Conn. 172. 3 Key V. Farley, 2 Car. & K. 313. ■» Goodrich v. Jones, 2 Curt. G71. 5 Mackenzie r..Yeo, 2 Cart. 8S'i. 304 PRIVILEGED COMMUNICATIONS. §§ 166-7 An attorney who draws up a will, is present at the time of its execution, sees the will after the death of the testator in the pos- session of the testator's family, reads it, and recollects its princi- pal provisions, is a competent witness to prove these facts, and his evidence is not privileged.-' § 166. Privilege as applied to fraudulent transactions. — The fact that an attorney was employed by his clients to as- sist them in a transaction which, from what was said in his pres- ence, he must have known to be a fraud upon their creditors, will not deprive their communications of the seal of professional confidence, however contrary it may appear to good morals. The law seems to be so settled, as where an attorney, who had drawn an agreement between a sheriff and his under-sheriff, was called to prove that such agreement was corrupt and illegal. But the professional privilege was extended to the case,^ And so where an attorney had been applied to for the purpose of drawing a fraudulent assignment, which he, declined doing, and the assignment was subsequently drawn by some other person. The attorney first applied to was offered as a witness to prove the fraud. But the court rejected the evidence, upon the ground that the communications were privileged.'^ So where the client consulted an attorney as to the best man- ner of evading the demands of his creditors, and the attorney recommended a fraudulent mortgage which he prepared accord- ingly, the attorney being examined as a witness to prove those facts, the master of the rolls suppressed the deposition as being a breach of professional confidence.* But the privilege has never been held to cover a communication made to an attorney to ob- tain professional advice or assistance as to the intended commis- sion of a felony or other crime, which is nudum in se." § 167. As applied to admissions. — An admission obvi- ously addressed to an attorney in order to elicit a legal opinion 1 Graham v. O'Fallon, 4 Mo. 338. ■i Anon. Skin. 404; Holt. 7C; 1 Ld. Eaym. ?:«. 3 Croraack v. Heathcote. 4 J. B. ^Nloore, 387. ■> Hyde r. M , 1 MoUoy, 4o0)i. To tlie same effect, see Doe v. Harris, 5 Car. cK: P. 592; Foster c. Hall, 12 Pick. 8!l; Clay c. WiUiams, 2 Munf. 105; Bank c. Jler- sercan, .3 Barb. Ch. 5S17. 6 Ibid . Dndley v. Beck, 3 "Wis. 274. § 168 PRIVILEGED COMMUNICATIONS. 305 from him touching the rights of the parties, as between them- selves, is not competent evidence against them, and is privileged ; and the fact that the admission was made to the attorney of the plaintiff, and not of these parties, makes no difference, because if the attorney of « their adversary would consent to act as their attorney, and advise them, the rule should still apply, whether the attorney was paid for his advice or not.^ A foreigner, unacquainted with the English language, being about to sue for a debt, engaged another to act as agent and in- terpreter in stating the case to attorneys, in order to employ them to bring the suit. Suit having been brought, and the asent and interpreter sworn to an admission made to him by the defendant of his indebtedness to plaintiff, it was offered to prove by the at- torneys that the interpreter, in his statement of the case to them, had said that he never heard such admission. The attorneys having declined to answer, the evidence was held privileged.^ § 168. As to acts done. — The privilege does not extend to every fact which the attorney may learn in the course of his em- ployment. There is a difference between conununications made by the client and acts done by him in the presence of the attor- ney. It is the privilege of one who is charged with a wrong, either public or private, to speak unreservedly with his counsel in preparing for his defense ; but he should not be allowed to stop the mouth of one who was present when the wrong was done, upon the allegation that he was retained as counsel to see or aid in the transaction. Where the original ground of com- munication is malum hi se, as if the attorney be consulted on an intention to commit a forgery or perjury, this is not included within the compass of professional confidence. But if the offense, as forgery, for example, committed without his being privy, comes to his knowledge, in the course of confidential transactions with his client in the way of business, he cannot be compelled to as- sist in proving it.^ There appears no reason for excluding the attorney when he has witnessed a transaction in the way of bus- 1 Bowers v. Briggs, 20 Ind. 139; Borum c. Fonts, 15 Ind. 50. •' Maas ('. Bloch, 7 Ind. 202. 3 Coveney «. Tannahill, 1 Hill, 36; Clay c. Williams, 2 JIunf. 105; Parker v. Carter, 4 Ibid. 273; Eex ti. Haydn, 2 Fox & S. 379. A. & C— 20. 306 PRIVILEGED COMMUNICATIONS. § 168 iness between his client and a third person, as the adjustment of an account, the execution of a deed, the payment of a sum of money, the giving up of securities, or the like. It is not neces- sary that a man should have an attorney to witness his dealings with third persons ; and if one is called in,» he may, like any other person who was present, be sworn to prove what was done ; as, for instance, whether he was present when an account stated was signed, when and where it was signed, and who else was present ; but not as to whether, when the attorney first saw the account stated, the e%'idence of a settlement was indorsed on it.^ It makes no difference that the attorney was present in conse- quence of his engagement as counsel. If a document is exe- cuted or altered in the presence of counsel, he is not privileged from testifying as to the fact.^ So the attorney may be called against his client to jjrove a deed to which he is a subscribing witness, to testify concerning a warrant of attorney which he had subscribed as a witness. Lord Ellenborough remarking, in one case, that the attorney was bound to disclose all that passed at the time respecting the execution of the instrument, but not what took place in the con- coction and preparation of the deed, or at any other time, and not connected with the execution of it, upon which matters he has a right to be silent.^ So an attorney has been required to prove his client's handwriting, although his knowledge of it was acquired solely from seeing him sign the bail-bond ; and where the attorney had acquired a knowledge of his client's hand- writing after the retainer, but without any confidential commu- nication, it was held that he was bound to testify.* An attorney's clerk may be called to prove that he received a iparticular paper from the client.^ And the attorney may be required to make discovery of a deed intrusted to him bv his client, by answering whether there was such a deed, where it is, 1 Coveney v. TannahiU, 1 Hill, 36; Say and Seal's Case, 10 Mod. 40; Epx r. Watkinson, 2 Strange, 1122; Doe v. Andrews, Cowp. 845; Greenougli v. Gaskill, 1 Mylne & K. 98; Studdy v. Sanders, 2 Dowl. & R. 347. 2 Patten v. :Moor6, 29 N. H, 163; Crosby v. Burger, ir Paige, 378: Bank v. Mersereau, 3 Barb. Ch. 528. ' 3 Robson J). Kemp, 5 Eap. ,')2; 4 Esp. 23S; Doe v. Andrews, Cowp. t>45. . -i Hurd V. Moring, 1 Car. & P. 372; Johnson v. Daverne, 19 John. 134; Sanford, D. Remington, 2 ^'es. Jr. 189. 6 Eicke 1.'. Nokes, 1 Moody \- M. 303. §§ 169-70 PRIVILEGED COMMUNICATIONS. 307 to whom delivered, when he last saw it, and in whose custody, but not to produce the deed or discover its contents.-' Where anything is communicated to au attorney by his client, for the purpose of defense, he ought not to divulge it ; but where he himself is, as it were, a party to the original transaction, that does not come to his knowledge in the character of an attor- ney, and he may be examined regarding it.^ § 169. Actual observation. — An attorney cannot be com- pelled to testify as to whether a promissory note was indorsed when placed in his hands for collection. And notwithstanding ,the doctrines enunciated in the cases cited in the preceding section, there are cases not in harmony with them, and holding that the privilege extends not only to what the attorney hears, but what he sees from his situation as attorney. Nor can an attorney be compelled to prove the destruction of a written instrument in his presence, and while he was acting as attorney. One sense is privileged as well as another. He cannot be said to be privileged as to what he hears but not to what he sees, where the knowledge acquired as to both has been from his situation as an attorney. So an attorney cannot be compelled to state whether an instrument, when shown to him by his client, was stamped or not. If the knowledge comes to the attorney throuo-h his professional relation to his client, it is not important whether it is by what the attorney sees or what he hears.^ Such is the doctrine in Illinois. § 170. Communications in view of breaking the law.— The privilege does not extend to parties seeking for information or advice as to the best mode of infringing the law : communica- tions of an intended offense must be disclosed.* For this reason 1 Coveney i'. Tannahill, 1 Hill, 33. 2 Coveney v. Tannahill, 1 Hill 33; Duffin v. Smith, Peakes, 108. See Baker r. Arnold, 1 Gaines, 258. 8 Dietrick v. Mitchell, 43 111. 40; Brown v. Paysou, 6 N. H. 443; Robson n. Kemp, 5 Esp. 52; Wheatby)). Williams, 1 Mees. & \V. 541. See Baker c. Arnold, 1 Caines, 257; Heistert;. Davis, SYeates, 4. i Wharton on Evidence, sec. 590; Rex c. Avery, 8 Car. & P. 59(i; Rex v. Farley, 2 Car & K 313; S. C. 1 Den. 0, C. 197; Rex v. Brewer, 6 Car. & P. 363; Pollett v. Jefferyesi 1 Sim. N. S. 17; Charlton v. Coombes, 4 Gift. 372; People v. Blakeley, 4 Park. c'. R. 176; Bank v. Mersereau, 3 Barb. Ch. 698; People v. Sheriff, 29 Barb. 622; Graham v. People, 63 Barb. 483. An attorney may testify to any communicalion made- to him to obtain pro- 308 PRIVII.EGED COMMUNICATIONS. § 171 the protection does not extend to communications, for instance, made to a lawyer for the purpose of raising money on forged securities. When the lawyer connives at an illegal purpose, he cannot claim any privilege. If he be a party to a fraud, no privilege attaches to the communications. Conniving at a fraud is no part of his duty as an attorney or solicitor. A lawyer, however, cannot be compelled to answer as to whether his ad- vice to his client did not involve an illegal purpose. ^ " There is no confidence as to the disclosure of iniquity. One party cannot make another the confidant of a crime or a fraud, and be entitled to close up that person's lips upon any secret which the communicant may have the audacity to disclose re- lating to any fraudulent intention. Such confidences cannot ex- ist.^ But a mere charge is insufficient, and the court will look at the circumstances of each case." ^ § 171. Collateral matters. — An attorney is not privileged from giving evidence of collateral facts. He may therefore be obliged to prove that his client swore to and signed an answer, upon which the latter is indicted for perjury.* But knowledge which an attorney obtains in the course of his employment as such, of the state of a deed, as whether when shown to him by his client it was stamped or not, is privileged." Knowledge of a client's handwriting, obtained by the attorney from having witnessed his execution of the bail-bond in the action, is not a confidential knowledge so as to privilege the attornev from an- fessional advice or assistance, as to the commission of a felony, or otlier crime which is malum in. se. Thus, a communication made to an attorney at law, hy a person seeking proressional advice or assistance, to enable him tu forge a con- tract, is not privileged. (People r. Blakeley, 4 Park. Cr. C. ITli.) 1 Russell 7.1. Jackson, 9 Hare, 392; Doe r. Harris, 5 Car t<- P. 5!)4. - Garteside c. Outram, 2(i Law J. Cli. 113, 114; Auncsley r. Anglesea, 17 How. St. Tr. 1139; Mornington r. Mornington, 2 Johns. & H. (197, 703; Gore v. Bowser. 5 De Gex & S. 30 ; Goodman v. Holroyd, 15 Com. B. N. S. 839 ; Blight r. Good- liffe, 18 Com. B. N. S. 757; Bank v. Rich, 32 Law J. Q. B. 300, 306; R. . . Jones, 1 Den. C. C. 16ii; Rex v. Farley, 1 Den. C, C. 197. •^ Crisp V. Platel, 8 Beav. 62; Charlton c. Coombes, i (iiff. 372; Bassford i. Blakesley, li Beav. 131 ; Doe v. Harris, 5 <,"ar. & P. 5\)i: Levy p. Pope, Moody X Jl. 410; Eeynell r. Sprye, 10 Beav. 51; Follett /■. .leffuryos. 1 Sim. N. S. 1; Hare on Discovery, 2nd ed. 163; People i\ Blakeley, 4 Parker Cr. C. 176; AVharton on Evidence, sec. 590. note. ■• Juppw. Andrews, Cowp. S45; Hceves r. Burton, (i Mart, (l^a.) K. S. 283; Sliel- iard V. Harris, 5 Car. & P. 592; Walker r. ■\Vildmiui, 6 Madd. 47. s Wheatley v. "\\'illiams, 2 Gale & Ii. 140; 1 Mees X- W. .533. § 171 PRIVILEGED COMMUNICATIONS. 309 swering, when called, on the part of the plaintiff, to prove the defendant's handwriting on the trial. ^ A communication made by a client to his attorney, to obtain infor-mation as to a matter of fact, and not for the purpose of asking him his legal advice, is not privileged ;2 and the attorney conducting a cause in court may be called as a witness by the opposite side, and asked who employs him, in order to show the real party, and to let in his declarations.^ And an attorney is bound to disclose, when called as a witness by the adverse party, the contents of a notice which he has received to produce a pa- per in the hands of his client.* What a mortgagor in treaty to raise money says to the attorney of "the mortgagee, is not privi- leged.^ An attorney is not bound, however, to give evidence of a statement made by himself to the adverse party by the direc- tion of his client.^ The privilege does not extend to information derived from other persons or sources, although obtained while acting as attorney." An attorney must disclose acts done in his presence by the client, as the execution of a deed, etc., but not a private confi- dential communication to him as to the reason for making it.** But knowledge which an attorney obtains in the course of his retainer as such, of the state of a deed, as whether, when shown to him by his client, it was stamped or not, is privileged.^ An attorney receiving a document from his client, is not privileged from answering a question put for the purpose of letting in sec- ondary evidence, whether the document is in his possession,^" or in court. '^ Testimony may be compelled as to facts derived from other 1 Hurd )■. Moring, 1 Car. & P. 372; Bevans v. Waters, Moody & M. 235; Jolin- 8011 V. Daverne, 19 .lohn, V.H; Coates r. Birch, 2 Q. 15. 252. 2 Bramwell v. Lucaa, 4 Howl. X: R. 3(i7; 2 Barii. & V. 745. 3 Levy c. Pope, Moody & W. 410. * Spencely v. Scliulenberg, 7 Ea.st, H57; 3 Smitli, .'12,3. 5 Marston c. Downes, 4 Nev. & M. 861 ; 3 Car. & P. 381; 1 Ad. i>t B. 31. 6 Ripon V. Davies, 2 Nev. & M. 310. ' Crosby v. Berger, 11 Paige, 377. 8 Saudford v. Remington, 2 Yes. Jr. 189; Jupp n. Andrews, Cowp: 840; Robson t,. Kemp, 4 Bsp. 235; Ue Voy's Lessee j'. Burke, 2 Fox & S. 191. 9 Wheatley v. Williams, 2 Gale, 140; Brandt v. Klein, 17 Johns 335. 10 Coates v. Birch, 1 Gale & 1). 647; 2 Ad. & E. N. S. 252; 1 Dowl. N. S. 540; Bevans v. Waters, Moody & M. 235. 11 Dwyer v. Collins, 12 Eng. L. & Eq. 537; Coveney r. Tannahil, 1 Hill, 33. 310 PRIVILEGED COMMUNICATIONS. § ITl sources than the relation of attorney and client.^ An attorney- may be"asked whether the relation of attorney and client sub- sisted between him and a party, if he is not asked to detail what occurred.2 He may be asked to supjjly the predicate for secondary evidence of a deed, whether he or the client has the deed.^ An attorney may be asked whether his client signed a bail-bond,* whether a note put in his hands for collection was indorsed or not,^ and whether he has a paper in court relating to the cause, in order that a notice to produce it immediately may be a sufficient and reasonable notice.^ If there be any question about an erasure in a deed or will, the attorney may be asked whether he had ever seen the instrument in any other stated But this doctrine must be limited to a case where the at- torney has his knowledge independently of any communication from the client; it does not mean that where the attorney, com- ing to the client for a confidential purpose, obtains some other collateral information, which he would not otherwise have pos- sessed, he can be compelled to disclose it.^ If an attorney were present when his client was sworn to an answer, he might be a witness on an indictment for perjury, to prove the fact of taking the oath, it not being a fact peculiarly within his knowledge as an attorney, and not communicated to him in secrecy.^ The at- torney may be compelled to testify as to the identity of parties, though, except from his intercourse with them professionally, he would know nothing of them.^'^ Communications by an attorney to the opposite party or to strangers, and communication between a plaintiff and defendant in the presence of an attorney, do not fall within the principle or terms of the rule which protects private communications be- 1 CWUicotlie Co. v. Jameson, 48 111. 2H1 ; Sawyer i\ Brickmore, 3 Jlylne & K. ~u'2. •^Leindecker v. Waldron, .52 111. 2X3. sZabel i'. Schroeder, .3.5 Tex. 308. ■•Hurd I'. Moring, 1 Car. & P. 545. ^ Baker c. Arnold, 1 Caines, 258. SRhoades' Li'ssce r. Selin, 4 Wash. C. C. Tl.T. 'Cutts V. Pickering, 1 Vent. Iil7. ■'' Wheatley v. Williams, 1 Mees. & \V. 4.51. I'Jnpp ('. Andrews, Cowp. 84(i. Sec Duffin c. Smith, Peake, 108; 1 Mylne & K. 109. "Study e. Sanders, 3 Howl. ^: R. 347; Beckwith c. Bennev. (> Car. & P. G81; Hurd '■. Moring, 1 Car. & P. 372; Eicke i\ Nokes, Moody X: M. 303; Rex c. Wat- kinson, 2 Strange, 1122. § 172 PRIVILEGED COMMUNICATrONS. 311 tween parties and their professional advisers.^ So communica- tions from the opposite party to the attorney or to the client, in his presence, are not within the rule.^ The attorney of the par- ties, for instance, may be examined as to the contents of a writ- ten notice, which had been received by him from the adverse attorney, requiring him to produce papers.^ Communications that pass between the attorneys of opposite parties are not priv- ileged.* Terms of compromise offered by an attorney to his client's creditors were not to be considered confidential when he had already published them.^ Communications made by a client to his attorney, not for the purpose of asking his legal advice, but to obtain information concerning a matter of fact, are not privileged. The character and office of an attorney are not then called into action.^ § 172. As applied to third parties. — The protection thrown around privileged communications extends to the pro- fessional advisers of strangers to the suit^ — as, for instance, to disclosures in regard to the contents of title-deeds of strangers when the deeds are confidentially deposited. The court, it seems, will inspect the documents and pronounce upon their ad- missibility according as their production may appear to be preju- dicial or not to the client.^ The privilege, as applied to strang- ers, is co-extensive with that of the client, no greater and no less." Where, by an order of the court of chancery, made in a suit depending between a lessor and a lessee, a lease was deposited in the hands of the lessor's attorney, and the lessee was at liberty to inspect the same, it was held, in an action of ejectment bi'Ought 1 Griffith V. Davis, 5 B. & A. 503; questioning Gainsford v. Grammar, 2 Camp. 9; Ripon v. Davis, 2 N. & M. 210; Turner v. Railton, 2 Esp 274. '^ Desborougli v. Rawlins, 3 Mylne & G. 515. s Spenceley v. Schulenbergh, 7 Bast, 357. 4 Gore r. Harris, 8 Eng. D. & Eq. 147. s M'Tavisli V. Denning, Anth. 113; Yordan v. Hess, 13 .Johns. 492. Bramwell e. Lucas, 2 Barn. & C. 744. See Desborough «. Rawlins, 3 Mylue & C. 515. " Rex V. Withers, 2 Camp. 578; Sloiuan v. Horne, 2 Esp. G9a; Bowman v. Nor- ton, 5 Car. & P. 177; Merle v. Moore, Ryan & M. 390; 2 Car. & P. 275. See Higgs V. Taylor, 1 Car. & K. 85; Chant c. Brown, 12 Eng. L. & E. 299. 8 Copeland v. Watts, 1 Stark. 95; Hawkins v. Howard, Ryan & M. Hi. But see Volant v. Sayer, 16 Eng. L. & E. 426. 9 Courtail v. Thomas, 9 Barn. & C. 288; Ditcher v. Kenrick, 1 Car. & P. 161; Rex V. Boddington, 8 Dowl. & R. 726; Harris v. Hill, 3 Str. 140. 312 PKIVILEGKD COMMUNICATIONS. §§ 173-4 by the lessee against the tenant in possession, that the attorney of the lessor was bound to j^roduce the lease, as it was not part of the lessor's title.i The attorney of a stranger to the cause cannot be compelled to produce a case with the opinion of coun- sel, which he holds confidentially for his client.^ § 173. Disclosing address of client. — When the residence of plaintiff is not known to defendant, and it is necessary for his protection that it should be disclosed, his attorney may be compelled to disclose it, and to give the plaintiff's occupation.'^ Proceedings may be stayed until the plaintiff can be found.* If a defendant plead non-joinder of other persons liable with him, he may be compelled to give their residences.^ But the court will not make an order upon a solicitor compelling him to dis- close the address of his client, (a defendant) who has absconded, and whom plaintiff seeks to serve with a subposna duces tecu'in^_ to compel his appearance at the hearing with documents mate- rial to the plaintiff's case.'' § 174. Privilege not lost by termination of relation. — " To permit professional confidence to be invaded when profes- sional relations terminated would put the client at the counsel's mercy, for professional relations might be terminated in order that professional communications might be disclosed. The cli- ent, indeed, may remove the prohibition by consent that his counsel should be examined," which consent cannot be implied by the client merely calling the lawyer as a witness, without examining him as to such communications.® If he do not, dis- solution of their connection, no matter how it may occur, works 1 Courtail c. Thomas, 9 Barn. & C. 288. See Egremont r. Langdon, IS Law J. N. S. Q. B. 17. 2 In re M'oodley, 1 Moody & E. 390. 8 Johnson v. Bixby, 5 Barn. & Aid. 540; 1 Dowl. & E. 17i; Xinety-nine Plaintiffs r. Vauderbilr, 1 Abb, Pr. K. 193; Worten c. Smith, U J. B. Moore, 110; McEoeman i. Patrick, 4 How. (Miss.) 5;!:.l; West v. Houston, 3 Har. (X. J.) 15; Evans u. Jones, Cas. t. Hardw. 179; Gynn i\ Kirby, 1 Strange, 402. But see Braceby v. Dalton, 2 Strange, 705. "* Short V. King, 2 Strange, (JKl. 6 Taylor c. Harris, 4 Barn, & Aid. 93. 6 Heath r. Crealock, Law E. 15 Eq. 257; S. C. 5 Monk's Eng. li. ,s:_:6. ' Wharton un Evidence, sec. 580; Merle v. More, Eyan & M. .'i'JO. 8 Vaillant v. Dodeman, 2 Atk. 524; Bate i>. Kiusey, 1 Oromp. M. ^: R, ;is. § 174 PRIVILEGED COMMUNICATIONS. 313 no change in regard to the inviolability of their intercourse." ^ The privilege applies as much to communications made before as to those made during litigation.^ Even an assignee in bankruptcy is not empowered to consent that the professional communications of his assignor should be disclosed.'^ An attorney will be prevented from testifying as to secrets confided to him, even after his name is stricken from' the roll of attorneys.* The rule, therefore, is perpetual in its operation. It extends to prohibiting the attorney from disclosing the privileged com- munications, not merely during the continuance of his relation to his client, but forever after — subject to the consent or waiver by the client.^ But if the attorney should ever be examined by his client as to these communications, he may be cross-examined on the same points, although a matter of professional confidence ; but not on other points." The rule extends not only to testimony in court, but the attorney is also prohibited from divulging the communications in any other manner, at the peril of an action by the client for consequent damage." Thus, where an attorney employed to raise money on mortgage, disclosed to the proposed lender certain defects in his employer's title, by reason whereof the latter was subjected to various actions at the suit of the pro- posed lender, was delayed in obtaining the money he wanted, and compelled to pay a higher rate of interest, an action was held to lie against the attorney, notwithstanding he had been the attorney of the proposed lender before he had been retained by the plaintiff.^ 1 Wilson V. Rastall, 4 T. R. 7511; Cholmondeley c. Clintou, 19 Ves. 268; Charlton V. Combs, 4 Gift'. .372; Galley r. Kichards, 19 Beav. 401; Russell v. Jackson, 9 Hare, S.S7; Chant v. Brown, 7 Hare, 79. 2 Minet v. Morgan, Law R. 8 Ch. 361; 42 L. J. Ch. 627; 21 Week. R. 467; Wil- son V. Company, 14 Ei|. 477; 20 Week. R. 938. 3 Bowman i . Norton, H Car. & P. 177; ^^■harton on Evidence, sec. 580. Tlie privilege is said to cease after the death of the client, where the solicitor is made executor and residuary legatee. (Crosby v. Berger, 4 Edw. 254; S. C. 11 Paige, 377.) * Cholmondeley c. Clinton, 19 Ves. 268. o Robson V. Kemp, 5 Bsp. ,52; Coveney v. Tannahill, 1 Hill, 34; Merle v. Moor, Eyan & M. 390; 2 Car. & P. 275; Parker r. Yates, 12 Moore, .ffiO, 6 2 Stark. 231. " Com. Dig. action on the case for deceit, art. 5. 8 Taylor v. Blacklow, 3 Bing. N. C. 235; 3 Scott, 614. 314 PRIVILEGED COMMUNICATIONS. § 175 The termination of the suit to which the communication relates does not render the communication less privileged, so long as it was made in a i^rofessional capacity. ^ But a conversation be- tween a person who has been tried upon an indictment and ac- quitted and one who was his counsel on the trial, the conversa- tion being had after the relation of counsel and client had ceased, and no further proceedings being contemplated, upon a subject unconnected with that to which the employment of the witness as counsel related, is not privileged,^ nor are matters occurring in open court, as to what title was in question in the cause.'" § 175. Communications made to legal adviser of tTvo parties jointly. — Two or more persons sometimes address a lawyer as a common agent. So far as concerns strangers, these communications are privileged, but not as between themselves. As they stand on the same footing as to the lawyer, either can compel him to testify against the other as to their negotiations.^ So with communications made by one party to a mutual attor- ney for the purpose of being forwarded to the other party .^ But the attorney must have, in the first j^lace, authority to disclose to the other. Papers put into his hands by either party, not to be shown to the other, but to be used exclusively for his own information, he will not be permitted to communicate.^^ Privilege also has been held not to extend to communications made to counsel in the presence of all the parties to the contro- versy;' nor to communications made by a party to a law student, whom the party thinks proper to consult independently ; nor to communications overheard by a third person, so far as such third ])erson is concerned.^ Where professional communications are made bv two or more 1 Clark /■. Richards, :) E. D. Smitli, 8!). 2 Mandeville v. Guernsey, :JS Barb. 225; Vordan r. Hess. 1.3 ,Iohns. 4112 3 Levers v. Van Buskirk, 4 Pa. .309. •< Wharton on Evidence, see. 587 ; Shore v. Bedford, 5 Jlau, tS: (%. 271 ; Kc ynolds V. Sprye, 10 Beav. 51; Warde /'. Warde, 3 Macn. ^: (i. 3()0: Earle c. Grout, 40 Vt. 113; Hatton c. Itohinson, 14 Pick. 410; Rice w. Rice, 14 B. Hon. 417. 6 Perry «. Smith, 9 Mees, & W. 081; Baugh v. Pradocke, 1 .Moody \: E. 1X2; 5 Barn. ^: Adol. 503; Spenoely v. Schulenburgh, 7 East, 'Ah'i: Desborough , . Raw- lins, Mylne X: C. 515. 6 Doe V. Seaton, 2 .Vd. & E. 171; Doc- v. Watkins, 3 Bing. N. (', 421. ^ Britton r. Lorenz, 45 N. Y. 51. 8 Barnes r. Harris, 7 (.'nsli. .57l>; Hoy !'. Morris, \.\ Gray. 519. §§ 176-7 PRIVILEGED COMMUNICATIONS. 315 clients jointly, to their mutual legal adviser, the seal of confi- dence can only be removed by all. The consent even of a ma- jority is not sufficient ; and one or more cannot require a dis- closure of the communication as evidence against the others, without their consent. Nor will the fact that one of the parties who has since died, might, were he living, be called upon to prove the facts which were stated by him to the attorney, enti- tle the other party to the testimony of the attorney. Commu- nications made by a lender to his attorney concerning a loan, after the making thereof, when no one else was present, and which were drawn out in consequence of the confidential rela- tion existing between the lender and the attorney, are also priv- ileged.i § 176. Correspondence between codefendants. — Wher- ever there is the relation of attorney and client existing, where correspondence is required to be produced from a person who has been employed as solicitor or agent for the defendant, the production of that correspondence cannot be insisted upon. Al- though the correspondence between codefendants, after the insti- tution of a suit, is not, as a general rule, privileged from pro- duction ; yet, where one defendant, being a solicitor, has acted as agent for the solicitor on the record, to collect evidence in the suit, the letters passing between him and his codefendant are privileged.^ § 177. Waiver by client. — It is well settled that the priv- ilege is the privilege of the client and for his benefit. He may expressly consent to the admission of the testimony, or he may expressly or tacitly waive the privilege by not claiming it. And when the attorney is called upon to testify by the client, or the latter's consent is shown, the former may be compelled to give evidence.^ And where the party examines his attorney as to ' Wliiting V. Barney, 38 Barb. 3fl:3. - Hamilton v. Nott, 16 Law R. Eq. n2. 3 Wood V. Thornbj', 58 lU. 4()4; Roland v. Plummer, 50 Ala. 182; Riddles v. Aikin, 29 Mo. 453; Benjamin v. Coventry, 19 Wend. 353; Fossler v. Sohriber, 38 III. 172; Hamilton v. People, 29 Mich. 183; Wilson v. Rostall, 4 T. R. 759; Sand- ford V. Remington, 2 Ves. Jr. 189; Herring v. Cloberry, 1 Phill. 9B; Merle v. Moore, R. & M. 390; Baillie's Case, 21 How. St. Tr. 341, 358, 408; Lea v. Wheat- ley, 20 Ibid. 574. 316 PRTVILEGEI) COMMUNICATIONS. § 178 the communication, he waives the privilege, and upon cross-ex- amination the attorney is bound to answer fully as to it;^ but not unless the attorney is examined as to the communications.^ Not claiming the privilege usually amounts to a waiver.^ But there appears to be scarcely any doubt but that the court may, and j)erhaps should, in proper cases interpose of its own motion.* The waiver is said not to be extinguished by agree- ment or compromise ; ^ and it is held in Massachusetts that the client becoming a witness does not alone amount to a waiver.® An heir at law of the client may call upon an attorney to tes- tify in regard to facts touching his interests, of which the attor- ney acquired knowledge solely from a professional consultation with the client. And it is said that counsel may be required to testify if the privilege be waived by the party who consulted him, although the interest in the subject-matter, respecting which the confidential communication was made, has passed to a third person, who objects to the disclosure." § 178. Propositions to compromise — How far regarded as privileged. — The plaintiif may call the former attorney of the defendant to prove an offer by him on behalf of his client to settle the account, and to pay a sum of money as due to the plaintiff, and a witness may be called upon by the plaintiff to state a conversation in which the defendant proposed a compro- mise to the plaintiff, although the witness attended on that occa- sion as attorney for defendant.^ But an offer made by the attor- nev of a near relation of defendant is no evidence against the de- fendant, and the fact of the defendant afterward employing the same attorney does not alter the case.** Where the debtor, before the creditor commences his action, 1 Crittenden v. Strotlier, 2 Crancli C. C. 4(j4; Mitchell's Case, 12 Abb. 2i9; King V. Barrett, 11 Ohio St. 2ei. '' "Waldron v. Ward, Style, 449; Vaillant i\ Dodemead, 2 Atk. 524; Bate v. Kin- sey, 1 Gromp. M. &■ R. :j8. 8 Walsh V. Trevannion, 15 Sim. 577; Hunter c. Capron, 5 Beav. a'f; Dartmouth h. Holdsworth, 10 Sim. 471); Thomas c. Kavvlings, 27 Beav. 140. * People V. Atkinson, 40 Cal. 284; Wharton on Evidence, sec. 5S.';. ^ Turney u. Bailey, 34 Beav. 105; Huglies r. Garnons, (> Beav. 252. 8 Montgomery v. Pickering, ll(i Mass. 2:>1. '' Benjamin v. Coventry, 19 M'end. 35.'i. S<'o Crosby c. Berger, 4 Edw. CIi. 254. •* Turner «. Kailton, 2 Esp. 474; Griffith v. Davies, 5 Barn. & Adol. 502. '^ Burghart f. Augerstein, 3 Car. .!v P. GOO. § 179 PRIVILEGED COMMUNICATIONS. 317 employs an attorney to make propositions to the creditor upon the matters in difference between them, tlie attorney cannot be examined as to what the debtor said upon the occasion, for this is to be considered as a privileged communication between at- torney and client ; but what the attorney said when he made the propositions to the creditor is admissible against the debtor, even without further proof of authority than the fact of the attor- neyship for the debtor.i Letters from a party proposing a com- promise are not privileged communications if tendered as evi- dence that the compromise has actually been effected.^ State- ments, however, made by an attorney's clerk to the attorney for the opposite party, if made with the object and wish of effecting a compromise, are privileged, as being a negotiation to bring about a compromise.^ An offer to accept a given sum in payment of a claim, on condition that the amount of the claim is not to be questioned, is not a negotiation for a compromise, and therefore is admissible.* § 179. Inforraation received extra professionally. — " If it should be held that a lawyer's lips are sealed as to all matters which he heard professionally, though he had at the same time extra professional knowledge of the same subject-matter, then all that would be necessary, in order to preclude a lawyer from rendering adverse testimony in a case, would be for the party to be injured by such testimony to communicate the same facts to the lawyer in professional confidence. Such a result, however, could not be tolerated, and for this and other reasons it has been held that privilege in this relation does not extend to information a lawyer has received from others than his client, though his client may have given the same information.^ Peculiarly is this the case when the information was received by the attorney when 1 Gainsford r. Grammar, 2 Camp. !l. i 2 Collier v. Nokes, 2 Car, & K. 1012. 3 Jardiae c. Sheridan, 2 Car. ^>t P. 24. Say Patch f. Lyon, 9 Q. B. 147; 15 Law J. Q. B. 193. -i Burchali u. Spottis, 3 Car. & K. 302. 6 Wharton on Evidence, sec. 588; Marsh c. Keith, 1 Drew. & S. 342: Davies v. Waters, 9 Mees. & W. (ill; Lewis '-. Pennington, 20 Law J. Ch. 070; FoUett. i. Jefferj-es, 1 Sim. N. S. 3, 17; Mackenzie r. Yeo. 2 Curt. 866; Greeuough v. Gas- kell, 1 Mylne & K. 104; Crosby v. Berger, 11 Paige, 377; Chillicothe E. R. v. Jameson, 48 111. 281; Howard v. Copley, 20 La. An. 504. See, also, Davies v. Wa- ters, 9 Mees. & W. 608; People c. Atkinson, 40 Cal. 284. 318 PRIVILEGED COMMUNICATIONS. § 179 acting as a party with a joint interest with the client, and not as his professional adviser, or when the knowledge was received in the progress of a trial." ^ " It has also been held that privilege does not protect state- ments made by client to counsel for the purpose of obtaining in- formation as to matters of fact as distinguished from matters of law, or statements made to the counsel in the presence of third parties, such parties not being concerned in a confidential con- sultation, or statements made to counsel in order to induce him to believe that the cause is one he can undertake without breach of duty to another client." ^ The right of an attorney, then, to refuse to disclose matters with which he has become acquainted in the course of his em- ployment as such, does not extend to matters of fact which he knows by any other means than confidential communication with his client, though if he had not been employed as attorney he might not have known them. To illustrate : An attorney is bound to answer on a trial whether a particular document be- longing to his client is in his possession, and is then in court.^ And so where a person devised real property to his widow for life, and after her death to his children equally, with a power to the widow to mortgage or sell, in case the fund arising from the real and personal estate of the testator was not sufficient for her maintenance, the widow executed a mortgage of the property for £30 to her son, and it was proved that four years before the mortgage the son advanced his mother a sum less than £1 to pay a poor's-rate that she was unable to pay. The subscribing witness to the mortgage-deed had acted as attorney both of the widow and her son respecting it. The court held that, on the trial of an ejectment by the administratrix of the son, to recover the property under the deed, the subscribing witness might be cross-examined to show that the sum of £30 mentioned in the deed, and in the receipt at the buck of it, was never, in fact, ad- vanced.* iDuffin V. Smith, Pea. R. 108; Rochester r. Bank, .5 How. Pr. 259; Brown r. Foster, 1 Hurl. & N. 73fJ. 2 Wharton on Evidence, sec. 588; Bramwell v. Lucas, 2 Barn. S: C. 743; IJes- Uorough (1. Rawlins, 3 Mylne & C. 515; Sawyer v. Birclimore, 3 Mylne & K. 572- Alien V. Harrison, 30 Vt. 210; Goddard v. Gardner, 28 Conn. 172; Hoy r. Morris 13 Gray, 519; Hearon r. Findlay, 12 Pa. 304. 3 Dwyer !■. Collins, 7 Ex. U:'.i); 10 Jur. Sfii); 21 Lnv J. Ex. 225. 4 Salt V. Carr, Car. X:, M. 123. §§ 180-1 PRIVILEGED COMMUNICATIONS. 319 § 180. Information not in the scope of professional duty is not privileged.— The subject must be within the pecu- liar scope of the lawyer's duty and profession. A lawyer may therefore be called upon to identify his client, to prove that client's handwriting, to declare whether certain writings are in his possession, so as to let in secondary evidence, and to divulge statements made to him by his client, when such statements are simply casual observations, having nothing to do with any legal question as to which the lawyer is consulted.^ The condition of the client's mind when he consults the law- yer, when such condition is patent to all other observers, is not privileged, nor is the question whether the lawyer was retained by the client, and in what capacity.^ § 181. The rule in criminal cases. — An attorney in a crim- inal case is bound by the same rules as to confidential communi- cations as in civil proceedings. He cannot be compelled, and ought not to disclose anything in evidence against his client, either before the grand jury or the court, which has been com- municated to hiui in the course of his employment as the pro- fessional adviser of the party, in that or any other judicial in- vestigation.^ Nor can he be compelled to produce documents delivered to him in confidence by his client, for the purpose of criminating the latter ; * but the attorney should be satisfied that 1 Wharton on Evidence, sec. 689; Carpmael ('. Powis, 1 Phill. 687; Bramwell r. Lucas, 2 Barn. & C. 86, 745; Brown v. Foster, 1 Hurl. &N. 736; Eexu. J^eveson, 11 CoxC. C. 152; Goodall ,j. Little, 20 "Law .J. Cli. 132: 1 Sim. N. S. 135; Wheat- ley V. Williams, 1 Mees. & W. 5.33; Desborough v. Itawlins, 3 Mylne & C. 515; Jones V. Goodrich, 5 jNIoore P. C. C. 16; Smith v. Daniel, Law E. 18 Bq. 6i9; Clark Richards, 3 E. D. Smith, 89; Plerson v. Steortz, Morris, 136; Studdy v. Sanders, 2 Dowl. & E. 347; Doe v. Andrews, 2 Cowp. 846; Hurd v. Moring, 1 Car. & P. .372; Johnson v. Daverne, 19 Johns. 134; Brown v. Jewett, 120 Mass. 215; Eams- hotham v. Senior, LaAv E. 8 Eq. 575; Ex parte Campbell, Law E. 5 Ch. Appeals, 703; Gillard . . Bates, 6 Jlees. & W. 547; Annesley v. Anglesea, 11 How. St. Tr. 1220. Perhaps, however, he cannot be compelled to disclose his client's ad- dress, (Heath v. Creelock, Law 11. 15 Bq. 257. But see Studdy v. Sanders, 2 Dowl & E. 347) unless the client be a ward of the court, or in bankruptcy. E'amsbotham v. Senior, Law E. 8 Eq. 575; In re Cathcart, Law E. 5 Ch. 703. ■^ Daniel ?■. Daniel, 39 Penn. 191; Beckwith v. Benner, 6 (.'ar. & P. 681; Heaton V. Findlay, 12 Penn. 304. But see Chirac v. Reinecker, 11 Wheat. 280; S. C. 2 Peters, 613. 3 Eex V. Duchess of Kingston, 20 How St. Tr. 612; Anon. 8 Mass. 370; State v. Squier, 1 Tyler, 147. ■1 Rex V. Dixon, 8 Burr. 1685. 320 PRIVILEGED COMMUNICATIONS. § 182 he is intrusted confidentially in the first instance for a legitimate purpose, as the defense of his client. Where documents are deliv- ered for the purpose of raising money, an attorney is not justi- fied in impeding the course of justice by withholding them on the trial of a prosecution for the forgery. '^ Although an attorney cannot be compelled in a criminal case, any more than in any other, to disclose any matter communicated to him professionally by his client with reference to his defense, still how far the obligation to secrecy extends in cases where the attorney is in possession of any information or document which he has obtained without reference to the prosecution, has not been considered so clear. ^ If there be any inability to recollect, on the part of the at- torney, whether a communication is made to him confidentially and professionally or not, the benefit of the doubt should, at least in criminal cases, be given to the client, if he objects to the disclosure ; as, where the attorney could not state whether certain admissions were made to him confidentially as counsel, or whether the client made them as a witness on his own behalf while under examination in court. ^ § 182. Course for attorney to pursue vrhen subpoenaed. The proper course, when an attorney is served with a subpoena to testify, or a subpoena duces tecum to produce documents, in relation to matters which he deems to be confidential, is to at- tend the court, the grand jury, etc., at the time and place re- quired, and formally claim his privilege, as a confidential adviser, from affording the evidence, and the court will at once determine the question. If he takes thfe responsibility on himself of refus- ing to appear or produce the evidence required, he subjects him- self to an action or an attachment.* If he breaks faith with the client, and takes upon himself the responsibility of testify- ing, he may be prevented by the court, at the suggestion of the 1 Reg. V. Farley, 2 Car. & K. 31.3; Reg. c. Hayward, Ibid. 231: Keg, r. Averv. 8 Car. & P. 59fi. 2 1 Phil. Ev. li:i. See Rex v. Dixon, 3 Burr. IfiSY; Reg. v. Avery, 8 Car. & P. 696; Rex v. Tilney, 18 Law J. N. S. M. C, .111; Reg, c. Hayward, 2 Car. & K, 231; Reg, V. Farley, 2 Ibid, 313; Reg, r, Hawkins, 2 Ibid. 823. 8 People c. Atkinson, 40 Cal. 284. '■ Avery '■. Long, » East, 4.S1; Reg. c. Carey, 7 Q. B. I(i2; Wilson c. Kastall, 4 T, R, 750. § 182 PRIVILEGED COMMUNICATIONS. 321 client at the time/ or even by injunction.^ He may also be sub- ject to an action by the client for the breach of professional con- fidence, and, in extreme cases, very serious resjjonsibility may be incurred.^ Of course the client may waive the privilege, as It belongs to him.* 1 Goodlight V. Bridge, Lofft, 27; 7 Johns. Ch. 25; 2 Cowen, 195. 2 Cholmondeley r. Clinton, 19 Yes. 207. ^ 8 Cholmondeley v. Clinton, supra. I Merle v. Moore, Ryan & M. 390; 2 Car. & P. 275. A. & C— 21. 322 RETAINEE AND APPEARANCE. § 183 CHAPTER IX. RETAINER, AND AUTHORITY TO APPEAR— APPBAEANCB. I, — BETAINEK. § 183. Commencement of the professional relation. § 184. The right to counsel. § 185. Estahlishing the relation of attorney and client. § 186. The retainer — written or parol. § 187. Contract of retainer. § 188. General and special employment. § 189. Retainer by one as agent for anotlier. § 190. Retainer by corporations. § 191. Effect of dissolution of partnership on retainer. § 192. ' Effect of death of party on retainer. II. — AUTHOHITV T(l APPEAR — APPEARANCE. § 193. Ancient mode of appearance. § 194. Appearance at the civil law. § 195. General license by reason of admission. § 196. Presumption of authority to appear. § 197. Adverse party may presume authority. § 198. Denial of authority — requiring its production. § 199. Effect of authorized appearance. § 200. Unauthorized appearance — dismissal of suit. § 201. .Judgments obtained through unauthorized appearance. § 202. Interference with judgment by Court of Equity. § 203. Collateral attack. § 204. Unauthorized apjiearance — foreign and domestic judgments. § 205. Effect of unauthorized appearance on innocent third parties. § 206. Question of attorney's pecuniary responsibility. § 207. Laches. § 208. Appearance for a i^ortion of several parties or for all parties. § 209. Appearance for a partnershiij. § 210. Appearance by attorney in appellate courts. § 211. Defendant's remedy against attorney. § 212. Remedy of the party whose name is used. § 213. Withdrawal of appearance, § 214. Practice. § 183. Commencement of the professional relation. — The result of a desire on the part of the client to employ an attorney in and about his business or litigation, and of a corre- sponding consent on the part of the attorney to act for the client § 184 RETAINER AND APPEARANCE. 328 in a professional capacity, is the retainer ^ of the attorney, either express or implied, by the party, from which time the profes- sional relation is established. This will lead to a consideration of the general right to appear by counsel ; the ancient mode of appearance by attorney ; the retainer and the contract of retainer ; the presumptions in favor of the attorney's right to appear ; the denial and impeachment of that authority ; laches on the part of the supposed client, and the effect of an unauthorized appear- ance. § 184. The right to counsel. — In England, the right to professional aid has been often denied when it has been most needed and most loudly demanded. In civil causes and on the trial of charges of misdemeanor the parties were entitled to the aid of counsel in eliciting the facts and presenting them and the law to the court and jury ; but when the government charged a person with treason or felony he was for a long period in En- glish history denied that privilege. Persons ignorant and unac- customed to public assemblies, perhaps feeble in body or in in- tellect, or in both, were put upon trial on charges which might consign them to the most ignominious death, with able counsel opposed, and all the machinery of the law in active operation against them, and yet refused this right. Imprisoned immedi- ately on being apprehended, they had little opportunity to pre- pare their defenses, even had they possessed the ability to cope witli their formidable adversaries. In the case of Sir William Parkins, tried for high treason before Lord Holt and his asso- ciates in 1695, after the Statute 7 William III, chap. 3, allow- ing counsel to prisoners indicted for treason had been passed, the accused claimed the privilege. He cited the preamble to the statute to the effect that such an allowance was just and reasonable. But his prayer was denied, on the ground that the day of trial was, although subsequent to the passage of the stat- ute, yet one day hefcyre the date of its taking effect. Lord Holt declared that he must administer the lawias he found it, and 1 In some localities, the word ' ' retainer " is used as synonymous with the words " retaining fee," which matter will be treated of in the chapter on "Compen- sation."' Retainer is the act of a client by which he engages a lawyer or counsellor to manage his cause. (Kouv. Die.) 324 RETAINER AND APPEARANCE. § 184 could not anticipate the operation of an act of Parliament for a single clay. The accused was convicted and executed. ^ Only such legal questions as the accused himself could sug- gest, was counsel allowed to argue for him. Only after the' revolution of 1688 was a full defense allowed on trials for trea- son ; and the privilege was not extended to persons accused of other felonies until as late as 1836.-^ The objection to extend- ing the privilege, or rather the apology for its denial, was the fiction that the judge was counsel for the prisoner. AVlien such judges as Jeffreys were acting as ex-ojfjcio "counsel for the pris- oner " and judges at the same time, the serio-comic character of this reason for the rule is at once apparent.^ It is a universal' principle of American constitutional law that a prisoner shall be allowed a defense by counsel. If unable to employ counsel, the court generally may designate some one to defend him. Frequently the assigned counsel is paid by the government of the locality ; but when he is not, it is generally conceded that it is the duty of the counsel not to refuse his aid; and in case of refusal, that the court is authorized to compel action.* The counsel should have free access to the prisoner at all reasonable hours. And it seems that Avhere counsel fails to appear at the trial, without the connivance of the accused, the latter is enti- tled to a postponement of the case, for the purpose of obtaining other assistance. What is a reasonable time for such postpone- ment dejiends upon circumstances, and should be regulated by the court in the exercise of a sound discretion." Having once engaged in a cause, counsel is not at liberty to withdraw from it without the consent of his client and of the 1 See Lieber's Hermeneutics, chap, i, sec. 13; Sedgwick on Statute and Consti- tutional Law, 81; Cooley's Const. Lim. *330. - 6 and 7 Wm. IV, chap. 114; 4 Cooley's Blackst. Com. ."35; May's Const. Hist, chap. 18; Cooley's Const. Lim. *332; 4 Macaulay's Hist. Eng. chap. 21; Article hy Sydney Smith, 45 Edinb. Eev. p. 74; Works, vol. 3, p. lioii. 8 See, also. Trials of Robert Tucker and Others for Piracy, in Charleston, S. C, in 1718, before C. J. Trott, (i Hargrave's State Trials, lo(). i Vise f. Hamilton Co., 19 HI. 18. 5 State r. Ferris, 16 La. An. 424. But see State r. Romero, 5 Ibid. 24: State c. Bradley, (J Ibid 55i>; and People r. iMoice, 1 5 Cal, .'Wl. As to the right to be com- pensated when so assigned, it has been held that, in the absence of express statutory provisions, counties are not obliged to compensate counsel for the de- fense of poor pri-soners. (Bacon i\ Wayne Co., 1 INIich. 4fil.) But there are other cases to tlie contrary. (Webb o. Baird, (i Ind. 13; Hall c. \\ashington Co. 2 (h-i-ene Iowa, 47.'!; Carjicnter c. Dane Co., Wis, 277.) § 184 eetaijser and appearance. 325 court ; and even though he may be impressed with a belief in his client's guilt, it is nevertheless his duty to see that a convic- tion is not secured contrary to law. The worst criminal is enti- tled to be judged by the laws ; and if his conviction is secured by means of a perversion of the law, the injury to the cause of public justice will be more sei-ious and lasting in its results than total escape from punishment.^ The statutes which conferred the right of appearing by attor- ney did not supersede the necessity of a personal appearance in criminal cases.^ In England, however, in indictments or in- formations in the Court ai Queen's Bench for offenses less .than felony, the personal appearance of the defendant during the progress of the proceedings has for a long period been dispensed with,3 it not being deemed necessary for him in such cases to stand at the bar or plead o?'e teniis* and the pleadings may now, on the face of them, purport to be by attorney instead of the ancient form of pleading by clerk in court.^ In some instances parties are permitted to appear by attorney in these cases who could not do so in civil suits, as infants, and the attorney appears to have as extensive a power as in an ordinary action.^ In civil causes, however, appearances by attorney during the conduct of a cause have been allowed from very early times. They are mentioned in Glanville, Bracton, Fleta, and Britton ; and a case turning upon a party's right to appear by attorney is rejDorted in the Year Book 17 Edw. HI, p. 8, Case 23. In France, such appearances were first allowed by letters-patent of Philip le Bel, a. u. 1290.' In all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law as by the rules of the courts, respectively, shall be permitted to man- and conduct causes therein.^ 1 Cooley's Const. Liin. *oll5. 2 Mar. 113, pi. ISO; Anon. 11 :\Iod. 25:!, pi. 5. 3 1 Chit. Cr. Law, 416; Bacon's Case, 1 Lev. 14(i; L.yer, :;466; Keihv. 105. 4 Eex ).'. Hales, 2 Strange, SIB; Eex ?•. Haycock, Ibid. 1100. 5 6 and 7 Vict. chap. 20, see. 14. <• Keg V. Tanner, 2 Ld. Raym. 1284. PraiticaU.y, the necessity of personal at- tendance during the proceedings consequent on prosecutions for misdemeanors is commonly dispensed with, if the mere form of a personal appearance has heen once gone through. ' 1 Eournel, Hist, des Avocats, 42, 3: 92, 3; 2 Loisel, Coutumes, 14, 15. 8 Act Congress Sept. 24th, 1789, sec. 35; 1 Stats, at L. 92. 326 RETAINER AND APPEARANCE. § 185 § 185. Establishing the relation of attorney and client. — The old and technical mode of constituting the relation be- tween client and attorney was by a power or warrant of attor- ney issuing from the client to the attorney. In ordinary practice, however, this formality is now rarely observed. The entering of an appearance by an attorney is accepted as an adequate voucher of his right and power to appear. It is prima fofie proof of his authority .^ Parties who appear for themselves may appoint attorneys at any stage of the proceeding.^ It is often, however, convenient to have produced the voucher on whicli the attorney acts. 1st. It may be important to determine who is the actual party who is represented. 2nd. It may be possible that attorneys may misunderstand their client's instructions as to the mode of procedure. Says Lord Tenterden, to take from the client a formal written authority " is better for the attorney, be- cause it gets rid of all difficulty about proving his retainer ; and it would also be better for some clients, as it would put them on their guard, and prevent them from being drawn into lawsuits without their express direction." ^ It was formerly necessary not only that the appearance by attorney but the authority or warrant of attorney itself should appear upon the pleadings. The entry of the warrant of attor- ney, though it came to be a mere form, was at first absolutely necessary to inform the court whether the party appeared in per- son or not. Previous to the Statute of V/estminster 2, chap. 10, the ded'mius potestatem, wliich was then necessary to enable a party to appear by attorney, was required to be entered with the officer afterward called the clerk of the warrants, and by him to be enrolled in the court. The same course was afterward adopted with the warrant of attorney ; and if this wore not entered, the common-law presumption prevailed, tliat the party appeared in person. An omission w mistake in this was sometimes held to be ground of error at common law, and sometimes not."* 1 Wharton on A<;oucy, 55!t; fjeslie r, FiSL'lK.T, (>2 lU. IIS; Wright i. Castle, o Mor. 12; Buckle c. Koach, 1 Ch. llVi; Anderson ,•, Watson, A Car, & P. 2U: Walker c, Rogan, 1 ^\'is. 51)7. - Kerrisou «. WalUngborongh, 5 Dowl. 51m, 8 Owen ti. Ord, :i Car, X; P. 31',l; Tabran v. Horn, 1 Man, & R, 32,S; 11 Johns, 466. ^Gilb.; Com, Dig, Amendment B. 1; 41 Edw. Ill; Coke .', Allen, S Mod. 77; Calverli-y r. Bieseley, liyir, 180a; Killegrewc, Trewynard, Dyer, 225(i, 330n, :3i>,'ia; Wood . , Plant, 1 Taunt. 45. § 185 RRTAINER AND APPEARANCE. 327 In the United States of America, less formality is required than in England. A written retainer, though proper, and indeed the safer and better practice, is seldom necessary, a parol retainer being sufficient ^ to authorize an attorney to commence a suit, whether in case of a corporation or an individual. And the gen- eral rule also is that where an attorney undertakes to appear for a party in a cause, a retainer will be presumed, and the court will look no further as to his authority unless it be questioned.^ In the absence of fraud or collusion, the courts have proceeded, and left the party injured by an unauthorized appearance to his remedy by action.^ The attorney's authority to appear may also be inferred from circumstances, as that he was the general attor- ney of the defendant, and the defendant, though knowing it, did not object to his appearance. And the acceptance of service of process by an attorney of record, on behalf of his client, will, in the absence of proof to the contrary, be presumed to be au- thorized.* Inferential authority is, therefore, generally deemed sufficient, but the presumption may be rebutted by positive proof of want of authority.^ The appointment of an attorney is strictly personal, and can- not usually be made by deputy, or be assumed from the mere relation of the parties, nor can an attorney appear for the ten- ant in possession in ejectment by order of the landlord.^ One executor cannot authorize an attorney to defend the other.^ And one partner seems to have no im[)lie(I authority to retain 1 Manchester Bank v. Fellows, :is X. H. S02; Hardin .. Ho-Yo-Po-Nubby, 27 Miss. 5U7; Hirshtteld v. Landman, .3 E. D. Smith, -JDS. 2 .laekson /■. Stewart, ll .Tohns. 34; Brown . . Nichols, 4-.' N. Y. 21); Hamilton v. Wright, 37 X. Y. .002; Proprietors c. Bishop, 2 \'t. 231; Post v. Haight, 1 How. 171; Pillsbury v. Dugan, 9 Oliio, 117; Hayes /■. Sliatfiick, 21 Cal. 51; Williams «. Butler, 35 111. .544; Hains r. (ialbraith, 43 Ind. 311!); I-Icnck i\ Todlranter, 7 Har. & .;. 275; Osboru v. Bank, y Wlieat. 738. 3 Tally ('. Reynolds, 1 Ark. Di); State ,.. Oarotliers, 1 Greene, 464; Beckley t-. Newcomb, 24 N. H. 359. * Conrey e. Brenhaui, 1 La. .Vn. 397; Dobbins r. Uupree, 39 Ga. 394; Bogardus c. Livingston, 2 Hilt. 23(i. 5 Dawson r. Lawley, 4 Esp. IJ5; Anderson r. Watson, :i (Jar. & P. 214; Crook v. ' Wright, Ryan & Moody, 273; Tabram (. Horn, 1 .Moody & R. 22X; Cameron v. Baker, 1 Car. & P. 268; Heywood v. Fiott, 8 Car. cS; P. 59. >> Doe d. Cooke o. Roe, 1 I'.arnes, 39. <9 Edw. Ill, chap. 3; Elwell «. (juash, 1 Strange, 20; Lepard t. Vernon, 2 Ves. & B. 54; Belle w v. Inchledon, 1 Boll. .Vbr. 929; Williamson Executors, 756, 1514. 328 RETAINER AND APPEARANCE. § 185 an attorney to appear and defend for the firm.^ But a contrary rule appears to prevail as to suing a debtor to the firm.^ "When an attorney is appointed by an agent, he represents not the agent, but the principal. If one, as the agent of another, em- ploy an attorney for such other, it does not establish the relation of attorney and client between the agent and attorney.'' The acquiescence of a party in the retainer of an attorney in his behalf, is equivalent to a direct retainer, as where a son knew and did not disapprove of the retainer of an attorney for him by his father, and where an attorney is legally entitled to sue in the name of another, he is de facto empowered to appoint an attorney to do so.* A codefendant may employ an attorney for other codefendants, and the appearance by such an attorney for all will bind all, and in the absence of proof to the contrary, an attorney appearing for an infant plaintiff will be presumed to have been employed by the plaintiff's guardian or next friend.^ As between plaintiff and defendant, the attorney is a competent witness to prove his authority.^ Although the license of an ^ttovnej \& prima facie evidence of his authority to appear for any person whom he professes to rep- resent, he may nevertheless be compelled by the court to show his authority at the instance of either party to the suit.^ But when the attorney's authority to appear is denied by the oppo- site party, the burden of proof is upon the party denying it, and he must state facts showing or tending to show that the at- torney does not possess the authority which he assumes, other- wise the presumption arising from his license and appearance will prevail.^ It is said that two things are necessai-y to establish the rela- tion between attorney and client : (1) the agreement of the at- IHambrklge v. De la Crouse, 10 Jur. 109H; 8 L. T. lU;i; 10 Law J. Com. P. 85; 3 C. B. Rep. 742. See ifoCuUooli v. Guetuer, 1 Binii. X. S. R. L'14. 2 Harrison v. Jackson, 7 T. R. 207 ; ( tollett r. Hubbard, 2 P. Coop. !>1. 3 Porter v. Peckham, 44 Cal. 204. ^ Pickford v. Ewington, 4 Dowl. 4.5.'i; (Jameron v. Baker, 1 Car. ,.>t P. 2(j8. 5 Hllliard v. Carr, 6 Ala. 557; Abbottn. Dutton, 44 Vt. 540. ''Pixleyti. Butts, 2 Cowen. 421; Tullock n. Cunningham, 1 Ibid. 250; CanifE r. Myres, 15 Johns. 240; FoUey r. Smith, 12 N. J. L. 140. ' People w. Jlariposa Co. 3!l Cal. OS;;; Commissioners r. Purdy, 30 Barb. 260; Rogers «. Park, 4 Humiih. 480; West ii. Houston,:! Har, (Uel.) 15; Ninety-nine Plaintiffs v. Vanderbilt, 4 Duer, 0S2. * People V. Mariposa Co. .'i'.) Cal. ()S;i; Thomas v. Steele, 22 Wis. 207. § 186 RETAINER AND APPEARANCE. 329 torney to be an attorney for the party, and (2) the agreement of the party to have the other for an attorney. The attorney, though an officer of the court, cannot general!}' in civil cases be compelled to appear or act for any one unless he has so undertaken or accejjted a i-etainer.^ If he has done this, he may be compelled to appear at the risk of an attachment, or even of being struck from the roll ; ^ provided, it would appear that the undertaking is in writing, and signed l>y the attorney.' And after having once entered an appearance for a party, an attor- ney is not at liberty to strike it out without lea^e of the court.* A retainer is determined by the death of the client.^ § 186. Retainer and appointment, -written or parol. — In England, it has not been necessary, since 1838, to file warrants of attorney to prosecute and defend previously to or at the time of signing interlocutory or final judgment, or at any stage of the proceedings.*^ While the retainer need not be in writing, yet if the attorney neglects to take the precaution, and his retainer is afterward questioned, he may be compelled to bear the costs of the risk he thus undertakes.^ An attorney may, however, like any other agent, be appointed by parol, and a verbal retainer or authority is sufficient to sup- port a judgment, even in case of a corporation, and although that corporation may be required to make the appointment un- der seal.^ The appearance is prbiia facie evidence of authority.^ 1 Salk. 87, pi. 4. 2 Loriraer c. HoUister, 1 Strange, (ittfl; Anon. Mod. 42; Kilbey r. '\\'eyberg, 12 Mod. 251; Mould v. Roberts, 4 Dowl. S: R. 719; AVliitechurch r. ^Vortllington, Ca. Pr. (ill: Holiday v. 8cott, Ibid. Ho; ^\■illiams r. Nasb, Hardw. ]:;i ; Bumtield V. .Tames, 2 Barnes, 232; AVigg v. Rook, (i Mod. 86. ■i Anon. Lofft, liiL'. * iSienzies v. Rodriguez, 1 Price, 92. Sph Anon. 2 Cliit. 415; Hellings r. Jones, .3 Bing. 70; Parmeter v. Reed, 1 yf. W. & H. 575. 5 Whitehead r. Lord, 7 E.xeli. 691;- 21 Law J. Ex. 2:J9. 6 Reg. Gen. Com. Pleas, H. T. 1 Viet. ; 4 Bing. B. C. ;J(i5; 5 Scott, 479; U D. P. C. 4fi4. ' Wiggins V. Peppin. 2 Beav. 403. 8 Lord V. Kellett, 2 Mylne & K. 1; Wiggins r. Pep|)ins, 2 Beav. 403; Vincent v. Bodardo, 2 Keb. 199; Prior r. Hale, Style, 348; Mayor of Thetford's Case, 1 Salk. 192; Eegv. Litchlield, KiLaw T. N. S. 333; 11 .Tur. 888; Arnold v. Jlayor, 5 Scott N. S. 741; 4 Man. & G. 8(iO; S. C. 12 Law J. N. S. C. B. 97; 2 Dowl. X. S. 574. Employment by the president of a bank is a sufflcient retainer by the bank. (9 Paige, 49G.) oOsborn v. Bank, 9 Wheat. 738; Proprietors v. Bishop, 2 Vt. 231; Wash. C. C. 429; Henck v. Todhuuter, 7 Har. & J. 275; 1 Bailey, 448. 330 RETAINER AND APPEARANCE. § 186 In practice, a formal authority is not often given, but a written retainer in all cases, no doubt, is the safest practice, for both attorney and client.^ The attorney is not embarrassed in prov- ing his retainer, and the client can always show what were the limits of his authority. The retainer may be inferred,^ but whether express or implied it should, except under very special circumstances, be from the party for whom the attorney appears.-' Having once been re- tained, and haying once appeared upon the record, the attorney continues such, at least as regards the adverse party, until the end of the suit. There cannot be a retainer to expire in the middle of the proceedings, though, as will be seen hereafter, the client may change his attorney at almost any stage of them by consent, or by order of court. An attorney may be retained specially, as to put in l)ail for a prisoner, or to take out a sum- mons for his discharge, and such special employment does not vest him with the authority to defend the action.* But if the first action be defeated by an answer of non-joinder, he may, by virtue of the original retainer, commence a new action against all the parties named in the answer.^ The courts have sometimes refused to hear applications made on behalf of absent parties, without proof of an express author- 1 Oweu V. Orel, 3 Car. c't P. 3ill. See Tabran «. Horn, 1 .Alati, ,;t K. 228; 11 Jolins. itii; Lord v. Kellett, 2 Mylne & K. 1, 2 Lee V. Jones, 2 Camp. 496; Gray v. Wainman. 7 Moore, liiT*; Hall i. Laver, 1 Hare, 571. ^Ghivers v. Fenn, 2 Show. 161; Roe v. Doe, Barnes, 311. *Dent V. Halifax, 1 Taunt. 493; Spencer i\ Newton, 6 Ad. & E. 630; 1 Xev. & P. 823. ^Crook i\ Wright, Uyan ^; M 278. And an attorney who receives a note from his client to collect, is warranted by his general retainer in bringing a second salt, after being nonsnited in the first for want of due proof of the execution of the note. {Scott o. Elmedorf, 12 Johns. :!l."i.) The contract of retainer is, usually, an entire contract to conduct the business to a termination, but he is not obliged to proceed with tlie action if his client, after reasonable notice, neglects to supply him with funds to pay e.xpenscs out of pocket. (Wadsworth r, Marshall, 2 C tV' J. GG.'J. ) Hi' cannot, however, abandon his client arbitrarily at any stage of the proceedings when he may choose to do so; and if he abandons tliecause without giving the client reasonable notice, he will be liable in an action of damages, (Hoby r. Built, 3 B. ^: Ad. 35(1.) If his client neglect to supply him with reasonable funds after reasonable notice, he may sue for his charges up to that time; ( Vansandeau «. Browne, i) Bing. 4(12) and it is held, may end his (!Uiployment liy reasonable notice and recover his charges. (Harris c. Osboru, 2 C. & M. (i:i2: Nicliolls , . Wilson, 11 Mees. & W. 1(17.) § 186 RETAINER AND APPEARANCE. 331 ity ; 1 and even where an attorney acted honestly for an absent party, upon a forged authority, he was made liable for the (!osts.^ Where any particular proceeding is but a substitution of renewal of previous proceedings, as where a fresh action is commenced after a successful plea of non-joinder, the retainer in the original action extends to the new action.^ But a retainer in one action does not entitle an attorney de facto to defend a cross-action.* Nor is a retainer in any action sufficient to authorize any pro- ceedings which may incidentally arise out of it.*^ A. retainer implies a promise to pay all costs rightly and prop- erly incurred upon the retainer.*^ Where an attorney is retained jointly by several parties to defend a suit against each, the de- livery of a bill of costs to one is sufficient to entitle him to main- tain a joint action against all for his costs." Two attorneys re- tained together, not being partners, are' supposed to be entitled to compensation in equal shares, irrespective of the amount of work performed by each.** When a judge orders, by consent, a consolidation of actions against several defendants who have sev- erally employed the same attorney, upon their undertaking to be bountl by the event of the trial of one, the order to consolidate operates as a joint retainer by the defendants of the attorney, and they are jointly liable to him for the cost:? of the action which is tried. ^ A prochein ami is liable for costs on retaining an attorney, even though he does not further interfere, and the attorney receives his instructions from third parties, unless the next friend displaces this prima facie liability by clear proof that ' Plunkett i\ Buchanan, 3 Barn. & C. 736; Lewis r. Tankerville, 11 Jlees. \- \V. 109. 2 Davies r. Eyton, :l Barn. ^: Ail. TS.'i. * 3 Crook V. Wriglit, R. & M. 278. 4 ,,. Lewis, 3 Law J. Ex. 212; Parmeter r. Reed, 1 W. W. & H. 575. 6 Noble ('.Bank, 3 Marsh. (Ky.) 2()3. See Jent r. Halifax, 1 Taunt. 493; Spencer V. Newton, 6 Ad. & E. 030. Bolden o. Nicholay, 3 Jur. N. S. SS4. ' O.xenham o. Lemon, 2 Dowl. ,.^- R. 4()1; Finchett v. How, 2 Camp. 27U; Crow- der.c. Shee, 1 Ibid. 4.!7. 8 Robinson r, Anderson, 28 Beav. 98; aff'd on appeal, 7 Ue (4ex, Jl. & G. 2.39. '■) Anderson /•. Boynton, 1 D. & L. 25; 13 Q. B. 308; 14 Jur. 14; 19 Law J. Q. B. 42. See, also, as to retainer, Dawson r. Lawley, 4 Esp. (iS; Anderson r. Wat- son, 3 Car. & P. 214; Briglit c. Legerton, 2 De Oex, P. &■ J. 603; 7 Jur. N. S. 559; 30 Law J. Ch. 338; Gregg v. Slater, 22 Beav. 314; 2 Jur. N. S. 246; 25 Law J. Ch. 440. 332 RETAINER AND" APPEARANCE. § 187 the attorney acted on the credit of other persons.^ Where an infant, suing by prochein (I'ini, has obtained judgment for dam- • ages and costs, which have been paid to the attorney appointed by the next friend to conduct the suit for him, he may maintain an action against the attorney to recover the amount, as money received for his use.^ §, 187. The contract of retainer may be made like any other ; it may be express or implied. When services are ren- dered under such circumstances as reasonably imply that they were performed with the assent and on the request of a party, he must be held liable. Where an attorney for a divorced wife prepared a written contract, at the request of the husband, creating a lien on the real estate of the former husband, to secure the payment of money to the wife, it was held that, in the ab- sence of any understanding on the subject, the contract should be prepared at the expense of the party whose lands were to become incumbered by it; and that, although the attorney was acting in respect to the subject-matter of the agreement as the attorney of the divorced'' wife, yet his relations to her did not prohibit him from preparing the contract at the instance of the other party. For on this service the husband was liable to com- pensate the attorney.'^ A woman delivered papers to an attor- ney, telling him she was entitled to an estate, and that she would pay him if she recovered it. The attorney took the papers, say- ing that "he would do what he could for her," and without fur- ther communication commenced an action .of ejectment, and afterward abandoned it, under the conviction that she had no title. The court held that th(j attorney acted without sufficient authority, both in commencing and discontinuing the action, and was not entitled to recover the costs incurred.^ A proposed mortgagee's solicitor has no claim for his charges against the proposed mortgagor ; where tlie negotiation for the mortgage goes off through the fault of the latter, he must look to the 1 Hawkes c. Cc.ttrcll, ". Hurl. \- N. 24:); L'T Law ,T. Ex. SHi. - Collins /'. Krook, 5 Hurl. X: N. 700; 20 Law J. Ex. 255;,Brook p. Collins, 6 Jur. N. S. 090. 3 Cooper & Moss ('.Hamilton, .^2 111. 110. * Tabran /;. Horn, 1 Man. & R. 228. §§ 188-90 RETAINER AND APPEARANCE. 333 person who retains him, leaving him to his remedy against the party who occasioned the fruitless expenses.^ § 188. G-eneral or special employment. — xin appoint- ment of a person as " permanent solicitor " or attorney does not necessarily mean an appointment for life. The word " perma-. nent," in a resolution of the directors of a corporation, appoint- ing one permanent solicitor to the institution, means no-more than a general employment as contradistinguished from an oc- casional or special employment. Such an employment will not prevent a discharge of the attorney unless some special time is mentioned in the contract. But if the agreement is that the attorney shall receive a stated amount per year for his services, the contract is good for at least a year, and it seems he cannot be discharged before that time.^ The employment of an attor- ney to do a mere ministerial act, such as procuring the execu- tion of a deed, does not so constitute him an agent as to affect his client with constructive notice of matters within the knowl- edge of the attorneys.^ § 189. Retainer by one as agent for another. — If one as the agent of another employ an attorney for such other, it does not establish the relation of attorney and client between the agent and attorney. Thus, if a party owning an undivided inter- est in land employs an attorney to act for him in relation to his interest in a partition suit, and at the same time, as the agent of another party owning an undivided interest, employs the same attorney to act for that other party in relation to his interest, the relation of attorney and client does not exist between the em- ployer and attorney as to the interest of the party for whom the employer acted as agent.* § 190. Retainer by corporations. — There are old cases which hold that the retainer or employment of attorneys by a corporation should be under the corjaorate seal ; and in cases 1 Wilkinson v. Grant, 18 Com. B. 319; 25 Law J. Com. P. 233. 2 Elderton v. Emmens, i Com. B. 479; 11 Jiii-. 612; 16 Law J. P. C. 209; S. C. (in error) 13 Com. B. 495; 4 H. L. Cas. 624; 18 Jur. 21. 3 Wyllie V. Pollen, 32 Law J. CIi. 782; 11 Week. E. 1081. ■1 Porter v. Peckham, 44 Cal. 204. 334 EETAINEE AND APPEARANCE. § 190 where this has not been done, attorneys have failed to recover their costs, even where the proceedings have been directed, rec- ognized, and acknowledged by resolution of the corporation ; still it seems that, under such circumstances, he may, on equitable grounds, appropriate funds in his possession to the amount of his bill.^ But where the act of incorporation expressly gives the directors power to appoint and displace any of the officers of the company, an appointment of an attorney under such a power need not be under the corporate seal.^ Other and more recent cases hold that corporations may employ counsel to prosecute or defend actions under a parol employment in a legal session, without making the same matter of record. This is the latent doctrine on the subject. But it is said that it must be done by the concurrent act of a majority of the board at a legal session.'' But it is tolerably well settled that it may be done even without a vote, by a president or other duly qualified executive officer of the corporation.^ As in other cases, when an attorney ap- pears for a corporation, in court, and prosecutes or defends an action for or against the corporation, it is presumed to be done on sufficient authority, and the production of a written warrant of attorney for that purpose is not necessary.^ When the president of a corporation authorizes an attorney or solicitor to prosecute or defend a suit, or to commence any legal proceeding in which the corporation is interested, the at- torney or solicitor will be authorized to appear for the corpora- tion, and such corporation will be bound by his acts. And if the president exceed his authority in retaining counsel, the cor- poration must look to him for any damages sustained in conse- quence of such unauthorized act. By the ancient common law, corporations aggregate were considered incapable of making contracts, or of appointing agents or attorneys to do anv bind- ing acts, except by a deed or power in writing under their cor- 1 Arnold r. Poole, 5 Scott N. K. 741; 2 1>. N. S. 574; 4 M. & G. stiO: 7 Jur. l«;5; 12 Law J. Com, P, 97; Sutton v. Company, 12 W. R, 742; 10 L, T, X. S, 411. 2 Keg, V. Cumberland, 5 Rail, C. 332; 5 P, & L. 431; 10 Jur, 1025; 17 I,4i-n- J. Q. B, 102, See Reg, c. Lichfield, 10 Q, B. 534; 11 Jur. 8SS; 16 Law J, (J. B, 333; Lewis )'. Rochester. 9 Com, B, X, S. 401; 7 Jur, X. S. 680; 30 Law .1. Com, P. 169; 9 W, R, 100; 3 L, T, X. S. 300, 3 McCahe v. Board, 46 Ind, 380: Manchester Ba-nk r. Fellows, 28 X. H, 302, 1 Osborn v. Bank, 9 '\\'heat, 738, 5 Sehroudenbeek v. Phoenix.Ins. Co, 15 Wis, 632. §§ 191-3 RETAINEK AND APPEAEANCE. 335 porate seal. But the existing law on the subject is, that a cor- poration may be bound by the acts of its agents, although not under its corporate seal, and even where they are not reduced to writing ; except in those cases where, by the provisions of the Statute of Frauds or otherwise, a contract must be in writing to render it valid, if made by a private person. And the acts and assent of cor23orations, like those of individuals, when not reduced to writing, may be inferred from other facts and circum- stances. ^ § 191. Effect of dissolution of partnership oh retainer. If attorneys, who are copartners, accept a retainer, the contract is joint, and continues to the termination of the suit, and neither can be released from the obligation or responsibilities assumed, either by a dissolution of their firm, or by any other act or agreement between themselves. Whatever is done by either in the defense of the suit, after the dissolution, is done under the contract of retainer previously made. A dissolution of a part- nership subsisting between attorneys, has reference to new busi- ness to be undertaken, and does not affect engagements already made, at least so far as their clients are concerned, and the same femark may be made as to the formation of partnerships among attorneys. The Statute of Limitations does not commence run- ning against attorneys till the service contracted for has been performed by a termination of the suit, or the contract has in some other mode been determined.^ § 192. Effect of death of party on retainer. — The au- thority of an attorney to commence and prosecute a suit is re- voked by the death of the constituent, and he has no authority, without a new retainer, to appear in the suit for the constitu- ent's executor or administrator.^ § 193. Ancient mode of appearance by attorney. — By the common law, the parties could not appear by attorney in any lAmerican Ins Co. v. Oakley, 9 Paige, 500; Perkins r. Company, 4 Cowen, 645; Field V. Proprietors, 1 Cush. 11. ■^ Walker v. Goodrich, 16 111. 341 ; Whitehead v. Lard, 11 Eng. Law & Eq. 587 ; I'^oster V. Jack, 4 M'atts. 334; Harris v. Osborn, 2 Cromp, & M. 629. 8 Gleason v. Dodd, 4 Met. 333; Palmer v. Eeiffenstein, 1 Man. & G. 94; Slior- man v. Allen, Ibid. 96. 336 RETAINER AND APPEARANCE. § 193 action, real, personal, or mixed, without the king's special war- rant by writ' or letters-patent; but was obliged to follow his suit in person. 1 This, however, must be understood of ajrpear- aiice by attorney, and not to the conduct of the suit by attorney, after n/>pein-ance once niadp ; for long prior to the Statute 13 Edw. I, (by which parties were first allowed to appear by at- torney) and even in the time of Glanville, a party might, upon appearance first made by himself in person, appoint a reffponsalis, (whose office was similar to that of an attorney) to represent him during the subsequent progress of the cause. ^ Glanville says : ^ " In suits concerning the right and propriety and some i Co. Lit. 12S(f; 3 Blackst. Com. 23; Beecher's Case, B Ca. .5S; Paigp i;. Talse, 3 Mod. 8. '■ - Stephen on Pleading, App. N. .t. " De LegUius, lib. 11, chap. 1. The actions wliioh were commenced originally in the curia regis, and which were called actions de prupriptati'. might be attended by the i^arties themselves, or by their attorneys. The word used by Glanville is responsalis ; and, from terms used in Bracton and Fleta, it has been su[)posed that an attorney, an ef>s:nuei\ alid a responsalis differed in some resjiects. (Braeton, 2126; Fleta, lib. vi, chap. 11, b. 7; Co. Litt. 128a.) The precise distinctions are not now ascertainable with certainty. The term used in the civil law for attorney \Vould probably be procurator ; but that is a general jDlirase; and the term responsalis is used in Justinian's N'oreUce in the sense of an officer sent with a special commission, and Glanville is speaking^ of the special function of representation in a court and in a particular suit. Appearance used to be personal: and among the '"abuses" specified in the "Mirror," is that appearance or answer by attorney was allowed. (Mirror, chap. 5, sec. 1; Art. 1.38, 102, 103, lOi, 100.) Still, it is manifest that attorneys did appear in court; and for some reasons they seem to have been different from essiiiners. A person, when he appointed a responsalis, was obliged to be present and make the appointment in open court, before the justices sitting there upon the bench, and no attorney could be received otherwise than from the principal then in court; though it was not necessary that the adverse party should be present at the time, nor even the attorney, provided he was known to the court. One person might be appointed attorney, or two, jointly or severally, so that if one was not present to act, another could be; and by such an attorney a plea might be commenced and determined, whether by judgment or final concord, as effectually as by the principal himself. It was not enough that any one was ap- pointed bailiff or steward for the management of another's estate and affairs, to entitle him to be received as his attorney in court; but he must have a special authority for that particular purpose, to act in that particular cause, nd lucran- duin rel perdendum, for him in his stead. It was the practice to appoint iu the curia regis an attorney to act in a cause depending iu some other court, and there then issued a writ commanding the person appointed to be received as such. A father might appoint his son his attorney, and so rice rersa, and a wife might appoint a husband. ^Vbbots and priors of canons regular used to be re- ceived as attorneys for their societies, as, of course, without letters from their convents; other priors, whether of canons or monks, it they were cloistered, even though they were aliens, w^ere never received iu court without letters from their abbot or chief prior. (Glanv. lib. 11, chaps. 1, 2, 3; 1 Reeves' History of English Law, by Finlaaon, 217.) § 193 KETAINEK AND APPKARAXCE. 337 other pleas, the party might prosecute either by himself or his attorney (responsalis) . The appointment was made by the party personally in court, and usually before the justices of the Common Pleas. He might appoint one or more ; if more than one was appointed, such appointment might be to act jointly or severally. The appointment was for the particular action only ; and after appointment the attorney might proceed till the suit was determined as fully and effectually as the principal himself. The party might also appear in the rurla regh, and appoint another to act for him in a suit in another court ; in which case a writ was directed to the person presiding in such court, com- manding him to admit the person appointed in the place of the party in such plea, (td lucnindiun vd peril enduing In the Exchequer, accountants were generally obliged to per- sonally render their accounts. If they made an attorney to ac- count for them, it was usual to have the king's leave for it. Sometimes the accountant nominated the attorney before the king, and thereupon the king by his writ commanded the treas- urer and barons to admit such person as attorney accordingly. But sometimes the accountant's attorney was admitted by war- rant or leave of the treasurer, chancellor of the exchequer, or barons, or one of them.^ Probably, in most civil suits, a party might appear in the curia regis and personally nominate his at- torney in the particular suit : but in cases where it was incon- venient for the [)arty to appear in court, it was necessary to have a special warrant from the king.^ Afterward, by various statutes, the right to appear by attor- ney was recognized. But a party might still sue or defend in person, and the right to prosecute or defend by attorney was a mere privilege, intended for the convenience and benefit of suit- ors.3 If the attorney appeared without authority, the party was frequently left, by the old cases, to his remedy against the attorney by action. 1 Maddox, Bxcli. chap. 23, sec. 35. 2 1 Reeves' History of English Law, Kill; F. N. B. 253; Com. Dig. Atfy B. 4. ssBlackst. Com, 25; Thompson v. Blackburn, 1 Nev. & M. 271; Vincents. Bodurdo, 2 Keb. 199; Glanville, lib. 11, chap. 1; Anon. 1 Salk. 86, 88; 1 Keb. 89; Alleley t'. Colley, Cro. Jac. 695; Lorymer v. HoUister, 1 Strange, 693; Mc- Cullougli V. Guetner, 1 Binn. 214, 469. A. & C— 22. 338 RETAINER AND- APPEARANCE. § 19^ In the earlier stages of the hiw, attorneys were appointed orally in court. Afterward, when they were allowed to be ap- pointed by warrant out of court, the practice of the court was to require the warrant to be filed, which might, however, be done at*at any time before judgment, and the want of it in the record was aided by statute, and could not be assigned for error.^ This strictness was gradually relaxed, and now, although an at- torney cannot, without special authority, admit service of juris- dictional process upon his client, yet it has been presumed in collateral proceedings, and on appeal or in error, that a regu- lar attorney at law, who appeared for a defendant, though not served, had authority to do so.^ So, in order to enable a party who has been represented by an unauthorized attorney to be re- lieved, he must negative the presumption of authority. The inconvenience of jjersonal appearance was remedied by several ancient statutes.^ The first statute relative to attorneys at law appears to be the Statute of Westminster 2,* which en- acted that persons impleaded before the justices at Westminster, or in the King's Bench, or before the justices assigned to take the assizes, or in any county before sheriffs, or in any court-baron, may make a general attorney in all pleas, to sue for them in all pleas moved for or against them during the circuit, until the 1 The following report is of a case in the time of Charles II, Court of King's Bench: "On the motion of Stroud, to file some warrants of attorney, after the attorney's death, viz., of Broome, which heing aftera writ of error brought, the court doubted, without there once ivere an actual warrant entered before judgment, and this, per Keeling, C. J., was the rule Of C. B. in his time on 22 Henry VIII, chap. 30; but albeit, the old books say, an attorney may be made by writ, or by deed, and may continually be demanded in court, yet the practice generally of late is only on parol retainer, and to enter the warrant at any time, as well after judgment as before, but then the court will leave Master Paget the Custos Brevium to sue upon the statute, if the warrants be not actually tiled in some time before issue, and brought into the office in convenient time." (Vin- cent '.'. Bodurdo, 2 Keb. 199.) If an attorney without warrant appear, this is a good appearance as to the court. (1 Keb. 89.) -Lagood V. Patterson, 1 Blackf. 327; Harshey v. Blackmarr, 20 Iowa, 172; Hill V. Ross, 3 Ball, 331; Osborn v. Bank, 9 Wheat. 738; Hare & "Wall, notes to Mills V. Duryee, 2 Am. Leading Cases; Prince v. Griffin, 10 Iowa, 552; Mas- terson «. LeClaire, 4 Minn. IfiS; Shelton c. Tiffin, 6 How. U. S. 103; Thomas t'. Steele, 22 Wis. 207; Fowler v. Morrill, 8 Tex. 153; Shroudenbeck v. Company, 22 Wis. 207. 8 20 Henry III, chap. 10 {Stat, of Merton); 3 Edw. I, Stat. 1, chap. 42; 6 Edw. I, chap. 8 (Stat, of Gloucester); 1 Reeves' History of English Law, 169; Crabbs' History of English Law, p. 114. 4 13 Edw. I, chap. 10. §193 EETAIKER AND APPEARANCE. 339 pleas be determined, or that his master remove him. Succeed- ing statutes enabled })ersons to appear by attorney in writs of prcBrminire as in other writs and plaints, which was gradually extended to tenants in novel disseisin} to appellants in an appeal of murder" when battle lies not";^ to persons outlawed and waived by erroneous process of law, and unable by reason of infirmity to come personally before the " king in his bench " ; ^ to every natural-born subject bailable by law in suits or informa- tions on penal statutes ; * to all persons outlawed for any cause, (except for treason or felony) to reverse an outlawry.^ The general effect of these statutes was that in all actions, real, personal, and mixed, the demandant or plaintiff, tenant or de- fendant, might appear by attorney ; ^ and also on indictments and informations on penal statutes, and on misdemeanors gener- -ally, for crimes less than felony, the party indicted or informed against might appear and plead by attorney.'^ But in cases amounting to treason or felony, and in all cases where parties were in contempt, they must appear and plead personally.^ Parties are not generally prevented from suing and defending in person if they choose.^ To this, however, there are some ex- ceptions, as corjjorations aggregate are incapable of appearing in person, and must appear by attorney.^" We have thus seen that attorneys were anciently appointed orally in open court, then out of court by warrant, but the pres- ent practice is, for the most part, to have them appointed out of court, with or without warrant. ^^ The appearance, however, by attorney, instead of the appearance of the party personally, must appear in some way upon the record, the party being pre- 1 7 Rich, n, chap. 14 ; 12 Edw. 11, Stat. 1, chap. 1. 2 3 Henry Vn, chap. 1. 3 7 Henry IV, cliap. i:i. 4 29 Eliz. chap. 5, sec. 21; amended by 31 Eliz. chap. 10, sec. 20. 5 4 and 5 Wm. & M. chap. 18, sec. 3. 6 Com. Dig. Atty. B. 5. ' 1 Roll. Abr. Attorney, 289, 1. 10; 2 Hale, 216; Com. Dig. Attorney, B. 5; Bac. Abr. Attorney, B. 1; Chit. Cr. Law, 411. 8 Br. Abr. Attorney, pi. 63, 69, 81, 101 ; Com. Dig. Attorney, B. 6. s 3 Blackst. Com. 25; La Grue v. Benny, 2 H. Black. 600; Uppeudale v. Light- foot, Sayers, 117; "Ward v. Nethercoate, 7 Taunt. 145. 10 Co. Litt. 66. In re Sutter, Hospital's Case, 10 Coke, 326; Year Book, 19 Henry VI, chap. 80; 21 Edw. IV, 18. 11 Glanville, lib. 11, chap. 1; Wynne v. Wynne, 1 Wils. 39; 2 Keb. 199. 340 RETAINER AND APPEARANCE. § 194 sumed to ooinc into court and apply to be admitted by attorney, and the courts not being bound to take judicial notice of the appointment if not entered in some way of record.^ The usual commencement of the pleadings, " A, by B f ', his attorney, complains," etc., seems now to be a sufficient entry of appear- ance by attorney,^ and tlie filing of a formal warrant of attor- ney is, as already stated, no longer necessary. Even in early cases it was considered sufficient that the au- thority to the attorney be given by writing upon the process that such a one shall be his attorney.*^ And if the attorney appeared, the court did not inquire into bis authority in the first instance."* It was considered sufficient to say, that A, venit per B, (ittornatuiii sv/iim^ And now the indorsement upon the sum- mons or writ, taken in connection with the words in the declara- tion or complaint, " the plaintiff, by his attorney, comes," etc., is generally sufficient. In Osborn v. Bank of United States, 9 Wheat. 738, the Supreme Court of the United States decided that the want of a warrant of attorney constituted no ground of reversing a decree, although a corporation was the plaintiff.^ § 194. In the civil law. — By the Roman law, and the prac- tice under it in modern Europe, a party to a suit may appear in person or by attorney (procurator). Unlike the common law. there is no presumption that the procurator has authority to rejDresent his client. It seems to be the practice for the procu- rator to file his written warrant of attorney as the first step, be- fore argument commenced. This is required by the court. And the civil law acts upon the principle that the act of two per- sons cannot bind or affect a third person, a stranger to the act. Int&p alios artit 'uel judicata aliis non nocere. l^ecrecs obtained or confessed by attorneys without authority would be held ab- solute nullities as to all persons.' 1 Hunter v. Neck. 3 Man. .^ G. 183; Gilb. 187; 2 Hawks. P. C. cliap. 22, sec. 6. 2 Parsons v. Gill, 1 Salk. KS, pi. S; 1 Leon. 9. 3 1 Sid. 31; ICom. Dig. 74B. 41 Salk. 86. 6 1 Com. Dig. 746. 6 Farmers & Mechanics' Bank v. Troy Cit..y Bank, 1 Dong. (Mich.) 457; Osborn V. Bank of United States, 9 Wheat. 738; Hellraan v. McWhennie, 3 Rich. 364. 'Code Yii, lib. L\-, Ivi, S. P. Dr. Linde's Lehrbuck of German Civil Proceed- ings, sec. 116. In Krance, see Code de Proc. Civ. tit. xviii. Authorities cited b.V Van Ness, J.: (i ,7olms. 314; Ridge v. Alter, 14 La. An. t-(i6, 3; Harshey i. Blackmarr, '20 Iowa, IS". § 195 RETAINER AND APPEARANCE. 341 § 195. General license by reason of admission. — Every attorney, regularly licensed and duly admitted to practice, pos- sesses a general license to appear in such courts as he may be admitted to, for any suitors who may retain him ; but his license is not, of itself, an authority to appear for any particular per- son, until he is in fact employed by or retained by him or for him. But his authority to appear cannot be legally questioned until facts or circumstances arc shown, by affidavit or other- wise, sufficient to raise a legal presumption of want of authority. ^ A simple allegation that a party is " informed and believes " that the attorney has no authority, without stating the facts upon which it is founded, is not sufficient to call his authority in question. An employment may be proven by circumstances and facts, ^ as well as by an express retainer. It is not necessary to show authority at the outset, whether the suit be by an individual or a corporation, in order to the progress of the suit, unless it is called for by the defendant. Even when called for, the declaration by the attorney that he was emjjloyed by the plaintiff or his agent, Avho, he believed, was duly authorized to employ him, will ordinarily be deemed sufficient. A defendant may, however, show that the suit is prosecuted without the consent of the plaintiff on the record ; and if it appear that he is the real and not the nominal plaintiff, the action will be dismissed for the want of a plaintiff in court. If he is the nominal plaintiff only, the suit might proceed. The fact that it is not affirmatively shown upon the trial that a suit is commenced by the authority of the client, is of no conse- quence. It is not necessary to show the autlun'ity until it is called for.^ But if a party has reason to believe that an action has been brought in the name of a legal party without his as- sent, and for the use of another, he may require the plaintiff to file his warrant, but it is said not after pleading and issue joined.* But attorneys are the officers of the court, and answerable to it for the proper performance of their professional duties. They appear and participate in its jjroceedings only by the license of the court ; and if they undertake to appear without authority from the party whom they profess to represent, the act is an 1 Cartwell v. Menifee, 2 Ark, 356. s Manchester Bank r. Fellows, 28 N. H. 302. 2 Tally V. Reynolds, 1 Ark. 09. * Campbell v. Galbreath, 5 Watts. 423. 342 RETAINER AND APPEARANCE. § 19" abuse of the license of the court, which, upon the application of the supposed client, the court has the power to inquire into and correct summarily. An attorney's license is prima facie evidence of his authority to appear for any person whom he professes to represent. The statement of an attorney that he appears even for a corporation is prima facie sufficient ; but if the supposed client denies his authority, the court may re- quire him to produce the evidence of his retainer. The court may also require an attorney to show special authority, upon the application of the opposite party, whenever justice requires it.^ As the attorney is permitted, by almost universal practice in America, to do so under verbal retainer, it is only in cases of clear want of authority or a^buse of his privilege that he is held to be incompetent to institute a suit, or to represent a party in court. As the presumption is in favor of his authority, though he may be required to show it, still, if he acts in good faith, and the want of authority is not manifest, he will not be held to have acted without authority, because it is not shown according to strict legal rules.^ § 196. Presumption of authority to appear. — The au- thority of an attorney at law, regularly admitted and licensed, to appear for the party whom he professes to represent, is pre- 1 Clark V. Willett, 35 Cal. 53i; Turner v. Caruthers, 17 Cal. i-il: MoKieruau v. Patrick, i How. (Miss.) 333; Penobscot Corporation v. Lamson, 16 Me. 'Hi; Bridgton v. Bennet, 23 Me, i20. See Henck v. Todhunter, 7 Har. & J. 275. * Hardin v. Ho-yo-po-nubby's Lessee, 27 Miss. 567; Rogers v. Park's Lessee, 1 Humpli. 480; McKiernan v. Patrick, 4 How. 333. Tlje rtling of a plea by an at- torney, or the signing of an answer to a bill in cbancery by a solicitor, thougli no process may have issued for the defendants, constitute an appearance, and is sufficient to authorize the rendition of a judgment or decree against them, with- out any proof of the authority of the attorney. (Lester c.Watkins. 41 Miss. 647.) It devolves upon party impeaching validity to show by positive proof that it is invalid and insufificient. (Hardin u. Ho-yo-po-nubby's Lessee, 27 Miss. 579; McKiernan v. Patrick, 4 How. (.Miss.) 333; Rogers t>. Park's Lessee, i Humph. 480.) Though the attorney may be required to show authority, yet if lie acts in good faith, and the want of autliority is not manifest, he will not be lield to have acted without authority, because it is not shown according to strict legal rules. All that is required, in the first instance, is, that the attorney has acted in "ood faith and under an autliority aijpearing to be genuine, thougli informal, and it devolves upon the party impeaching tlie authority to sliow by positive proof that it is invalid. (Hardin .'. Ho-yo-po-nubby's Lessee, 27 jNUss. 567.) See cii-- cumstances under whicli authority was considered insufficient. ( Day r. Adams, 36N. C. 254.) § 196 RETAINER AND APPEARANCE. 343 sumed until the contrary is shown ; in other words, an appear- ance in a suit by an attorney of the proper court is presumed to be authorized.^ The burden of proof is upon the party deny- ing the authority.^ But, notwithstanding this, the opposite party may compel the attorney at the outset to show his author- ity, or produce his warrant of attorney.^ For this purpose due cause must be shown.* In some States it is prim,a facie suffi- cient if the attorney declares that he was duly employed by the plaintiff, or that he is the party's general legal representative.^ The presumption as to the authority to appear extends to an appearance by attorney in an appellate court.^ In the absence of preponderating evidence, a power of attorney not authenti- cated, a letter, or parol evidence, which raises a reasonable .pre- sumption of the existence of authority, is sufficient, even when the authority to appear is questioned." It may be stated that an appearance by attorney binds prima facie the party for whom he appears, whether the attorney was employed by the party or not.^ The client may, however, have 1 Hays V. Shattuck, 21 Cal. 51 ; -Anderson v. Sutton, 2 Duval, 480; Tally v. Rey- nolds, 1 Ark. 09; Williams n. Butler, 35 111. 544; Succession of Patrick, 20 La. An. 204; Beckley u. Newcomb, 24 N. H. 359; Leavitt v. Wallace, 12 N. H. 489; Penobscot Co. v. L.amson, 4 Shepley, 202; Henck v. Todhuuter, 7 Har. & J. 275; ilunnikuyson v. Dorsett, 2 Har. & G. 374; Harris v. Galbraith, 43 111. 309; State v. Carothers, 1 Greene, 464; Turner ?;. Caruthers, 17 Cal. 431; Man- chester Bank v. Fellows, 28 N. H. 302; Holmes v. Rogers, 13 Cal. 191; Jackson o. Stewart, 6 Johns. 33; Hamilton v. Wright, 37 N. Y. 502; Proprietors v. Bishop, 2 Vt, 231; Osborn 'v. Bank, 9 Wheat. 231; Post v. Haight, 1 How. Pr. 171; 2 Ibid. 32; Thomas v. Steele, 22 Wis. 207; Pillsbury ;). Dugan, 9 Ohio, 117; Leslie v. Fischer, 62 111. 118; Wiggins v. Pippin, 2 Beav. 403; Emmens v. Elderton, 13 Com. B. 495; 4 H. L. Cas. 624; Republic v. DeArangoiz, 5 Duer, 643. - Thomas v. Steele, 22 Wis. 207; Sehoudeubeck v. Company, 15 Wis. 632. sSilkman i. Boiger, 4 E. U. Smith, 236; State r. Houston, 3 Har. (Del.) 15; Standefer v. Dowlin, Hemp. 209; Lynch «. Com. 16 Serg. & R. 358; Campbell v. Galbreath, 5 Watts, 423; Gillespie's Case, 3 Yerg. 325; O'Flynn o. Eagle, 7 Mich. 306; McAlexander v. Wright, 3 Mon. 194; Clark v. Willett, 35 Cal. 534; Knowl- ton V. Plantation, 14 Me. 20. •* Savery v. Savery, 8 Iowa, 217; Hellman v. Whenny, 3 Rich. S. C. 364; Barnes V. Profilet, 5 La. An. 117. 5 Manchester Bank v. Fellows, 28 N. H. 302; Farrington v. Wright, 1 Minn. 241; Field v. Proprietors, 1 Cusli. 11 ; Bridgton v. Bennett, 23 Me. 420; Henck v. Todliunter, 7 Har. & J. 275; Hardin v. Ho-yo-po-nubby, 27 Miss. 567; Bogardus r. Livingston, 2 Hilt. N. Y. 236. •i Ricketson v. Compton, 23 Cal. 637. " Rogers v. Park, 4 Humph. 480. 8 Ferguson v. Crawford, 7 Hun, 25; Brown v. Nichols, 42 N. Y. 26; Denton v. Noyes, 6 Johns. 296; Abbott ;;. Dntton, 44 Vt. 546; S. C. 8 Am. R. 394; St. Albans ' V. Bush, 4 Vt. 58; Spaulding v. Swift, 18 Vt. 214; Newcomb v. Peck, 17 Vt. 302; Cyphert c. McClune, 22 Pa. 195. See Stevens y. Fuller, 55 N. H. 443. 344 RETAINER AND APPEARANCE. § 196 a remed)^ for an unauthorized appearance directly against the attorney for damages, or he may make a direct application to the court which has rendered a judgment against him on the unauthorized appearance.^ And the court may, before judg- ment, and in a proper case, and on a proper showing, require an attorney to exhibit his authority for bringing an action.^ In England, if the authority be denied, a written vrarmnt has been required.^ If a party denies under oath that a plea filed in his name by an attorney was filed with his authority, and the alle- gation is fully borne out by positive proof, the attorney's acts are not binding.* But in all cases of confession of judgment, the party represented without authority, or falsely represented, should take immediate action . by an application to open the judgment as soon as the facts come to his knowledge, otherwise he may be considered to be estopped by his silence.^ As a general rule, when a suit is commenced or defended, or any other proceeding is had therein by a regularly licensed at- torney, it is not the practice to inquire into his authority to ap- pear for his supposed client. But if the party for whom such solicitor appears or assumes to act denies his authority, and ap- plies to the court for relief before the adverse party has acquired any rights or suffered any prejudice in consequence of the acts of the attorney, the court may correct the proceedings, and mav compel the attorney who has assumed to act without authority, to pay the costs to which the parties have been subjected in con- sequence of his improper interference.'^ But in cases where the adverse party has acquired rights or been subjected to costs by proceedings in the name of a party who afterward denies the authority of the attorney who has thus proceeded, courts have permitted the proceedings to stand, where the attorney is able to respond in damages, leaving the party injured by such ilbid. 2 Ninety-nine Plaintiffs v. \'andei'bilt, 4 Duer, (io'2: Clark n. Holliday, 9 Jliss. 711; Gillespie's Cuse, 3 Ycrg, 325; McAlexauder p. Wright, 3 Mon. l!ii: Allen w. Green, Bail. 448; "West v. Houston, 3 Har. (Del.) 15; State v. Tilgliman, 6 Iowa, 496; McKiernan r. Patrick, 5 Miss. ,333. 3 Maires v. Maires, 23 Eng. Law & Eq. 22; Allen r. Bone, 4 ISpav. 493. * Decuir v. Lejeune, 15 La. An. 5(i9. ' Cyphert ;■. McClune, 22 Pa. 195. .li American Ins. Co. v. Oakley, 9 Paige, 496; Wright i'. Castle, 3 Mer. 12; Lord u. Kollett, 2 Mylne & K. 1. § 197 RETAINER AND APPEARANCE. 345 unauthorized proceedings in his name to seeic lais redress against the attorney by a summary application to the court or other- wise.^ The court will not arrest proceedings if satisfied by parol evi- dence of the attorney's authority.^ But where it appears that process was issued by an attorney without authority, such process may be set aside on motion of the opposite party ,^ or the court will stay the proceedings, and order the attorney to pay the costs.* To such a rule the plaintiff should be made a party. The motion may, however, emanate from the plaintiff himself.® § 197. Adverse party may presume authority to appear. Speaking in general terms, an appearance by attorney, whether for plaintiff or defendant, if there be no collusion, may be recog- nized by the adverse party as authentic and valid. Receiving their authority from the court, attorneys are deemed officers of the court. Their commissions declare them entitled to confi- dence, and their license is an assurance, not only of their compe- tency, but of their character and confidence. The direct control of the courts over them as officers, by way of summary discipline and punishment, to compel the performance, or to suspend or degrade them, is retained and exercised as a guarantee of their fidelity. It is no denial of the rule that where there are special circumstances calling for its relaxation, the courts may and do relieve from its rigid application. So, when an appearance is entered by an attorney without authority, the inquiry whether 1 American Ins. Co. v. Oakley, 9 Paige, 496; Dundas v. Dutens, 1 Ves. Jr. 19(i; Denton v. Noyes, 6 Johns. 297 ; Cox v. Nicliols, 2 Yeates, 547 ; Ex parte Stuckey, 2 Cox, 283. See Hofemire v. Hoffmire, 3 Edw. Cli. 173. 2 Cartwell v. Manifee, 2 Ark. 355 ; Commis v. Purdey, 36 Barb. 2fiB; Boutlier v. Johnson, 2 Browne, (Pa.) 17; Allen v. Green, 1 Bail. 448; West v. Houston, 3 Har. (Del.) 15; Ninety-nine Plaintiffs v. Vanderbilt, 4 Duer, 632; Hirshfeld v. Landman, 2 E. D. Smith, 208; Rogers v. Park, 4 Humph. 480; King of Spain v. Oliver, 2 Wash. 429; Bush «. Miller, 13 Barb. 481; Bank c. Troy Bank, 1 Doug. (Midi.) 457. See i:>ay r. Adams, 63 N. C. 254.' 3 Wharton on Agency, sec. 565; Frye v. Calhoun Co., 14 111. 132: Crichfield «. Porter, 3 Ohio, 518; Powell v. Spaulding, 3 Iowa, 443; Hess v. Cole, 23 N. J. L.; 3 Zab. 116; Handeley v. Statelor, 6 Litt. 186; Boykin v. Holden, 6 La. An. 120. i Hubbart v. Phillips, 2 Dowl. & L. 707; 13 Mees & W. 703. See Hammond v. Thorpe, 1 Cromp. M. & R. 64; 2 D. P. C. 721. 5 Wharton on Agency, sec. 5B5; Thatcher v. D'Aguilar, 11 Ex. 436; Norton v. €ooper, 3 Smale & G. 375; Jenkins v. Fereday, Law Rep. 7 C. P. 338; Reynolds J,.. Howell, Law Rep. 8 Q. B. 398. 346 RETAINER AND APPEARANCE. § 198 the attorney is of sufficient responsibility to answer in damages to the party injured for his unauthorized conduct has been enter- tained, and it is proper sometimes to inquire whether the injury to the party is irremediable, unless such appearance be set aside, and the proceedings founded thereon vacated. In the exercise of their general control over their own judgments, the courts may and do consider whether they can relieve the party for whom an unauthorized appearance is made, without undue prej- udice to the party who has in good faith relied upon such ap- pearance, and the official character of the attorney who appears. But when, pending a litigation, the authority of the attorney to . appear is denied, and application is made in due season, the court, if probable cause appears, will, in general, protect the party applying. ^ Still, tlie general rule remains, that a retainer will be presumed when the attorney appears, and the adverse party, having no notice or ground of suspicion, may act on that presumption.^ § 198. Denial of authority to appear — Requiring pro- duction of authority. — The attorney's authority to appear is de- rived from the party, and dependent on him for its continuance ; and although it is not the practice of the courts, in ordinary cases, to require the attorney to produce either a warrant or other authority from the suitor, before he is permitted to appear, yet its production may be, and under certain circumstances will be, required by the court. Courts act on the presumption that the attorney is authorized by the party ; and it is by virtue of this authority that he is permitted to appear and prosecute or defend, and not merely because he is an officer of the coiirt, admitted by them, and sworn to discharge his duty. Both in England and America, the cases are numerous where parties have obtained relief against the acts of unauthorized attorneys, although the old English rule might have been otherwise. Lord Mansfield expressly states the doctrine, that a party to a suit is not bound by the act of an attorney not employed by him ; and where a defendant had. paid money to the attorney, who had 1 Ninety-nine Plaintiffs v Vanderbilt, 4 Duer, 632; Wright v. Castle, 3 Mer. 12; Lord v. Kellett, 2 Mylne & K. 1. 2 Hamilton u. Wright, 37 N. Y. 502; Republiu of Mexico «. Ue Arangoiz, 5 Duer, 643; Jackson n. Stewart, 6 Johns, 33; 9 Paige, 4U6. § 198 RKTAINER AND APPEARANCE. 347 brought a former suit, and appeared for the plaintiff, he was said to be liable to pay it over again, if it appeared the attor- ney was not employed by the plainiiff.^ In a case in New York, it wiis held that judgment obtained against the defendant, not served with process, in consequence of the appearance of an unauthorized attorney, was not conclu- sive upon the defendant, and the proceedings were reversed, and the party permitted to make his defense. Whatever may have been the old English rule, the practice of the English courts now seems to be not to consider the act of an attorney conclusively binding unless he is employed by the_ person for whom he appears, and the decisions of the courts of the United States have generally been in accord with that practice.^ Es- pecially will the plaintiff be relieved, and proceedings set aside or stayed, when it appears that the attorney is insolvent.^ "If, in defraud of the rights of a bona fide party, two nominal parties to a suit procure a judgment to be entered by means of a fraudulent unauthorized appearance, such judgment may be impeached collaterally, so far as concerns any persons tainted with knowledge or bound to inquire into the fraud." * It has been held by the Supreme Court of the United States, that while the party against whom an unauthorized appearance has been entered, when sued on a record in which judgment has been en- tered against him on such attorney's appearance, may prove that the attorney had no authority to appear ; yet he can do this only on a special plea, or on such plea as under systems which do not follow the common-law system of pleading is its equivalent.^ Notwithstanding an attorney's license is prima facie evidence 1 EobsoTi V. Eaton, 1 T. E. &1. 2 Eobson V. Eaton, 1 Term Eep. 62; Denton v. Xoyes, 6 Johns. 2!18; Critchfield V. Porter, 3 Ohio, 518; Anon. 11 111. 488; Frye v. Calhoun Co. 14 111. 132; Wal- worth V. Henderson, 9 La. An. 339; Bell r. Uraury, 4 Litt. 334. 3 Campbell v. Bristol, 19 Wend. 101. See Meyer v. Littell, 2 Pa. 177. * Wharton on Agency, sec. 566; Beckley v. Newcomb, 24 N. H. 359; Mexico v. De Arangoiz, 5 Duer, 643; Jackson c. Stewart, 6 John.s. .34; Henck v. Todhunter, 7 Kar. & J. 275; Turner v. Carutliers, 17 Gal. 431; Hayes v. Shattuck, 21 Cal. 61; Dalton V. Dalton, 33 Ga. 243; Tally v. Reynolds, 1 Ark. 99; Williams v. Butler, 35 111. 544; Kent v. Richards, 3 Md. Ch. .392; Nofes v. Douglas, 5 N. J. L.; 2 South. 817; Conrey v. Brenham, 1 La. An. 397; Bank of Conn. i'. Bank of Bul- falo, 6 Paige, 497; Fowler v. Morrill, 8 Tex. 163; Cox «. Hill, 3 Ohio, 411. See Pillsbury v. Dugan, 9 Ohio, 117. 5 Hill c. Mendenhall, 21 Wall. 453. 348 RETAINER AND APPEARANCE. § 198 of his authority to appear for any person whom he professes to represent, he may be compelled by the court to show his au- thority to appear for such party, and this may be required of him at the instance of the opposite party as well as of the party for whom he appears. In order to invoke the exercise of such power, the opposite party, when he questions the authority of the attorney, must state facts showing, or tending to show, that" the attorney did not possess the authority which he exercised. He must state such facts, and the grounds and reasons which induced him to believe that the attorney had no authority to ap- pear ; otherwise t\\e prima facie evidence, viz., the presumptions arising from the license and the fact of the appearance, will pre- vail. A mere general allegation that a party is informed and believes that the attorney had no authority, is not generally deemed sufficient to overthrow the presumption. ^ In Clark v. Willett, 35 Cal. 534, the authority of an attorney to appear was discussed. The bill of exceptions related to the power of the inferior court to go behind the license of an attor- ney, and inquire as to his authority to appear for his client. The bill showed that when the case was called for trial, the de- fendant's attorney, appearing on behalf of one of the plaintiffs, who was present in court, moved to discontinue the case as to him, and in support of the motion presented an affidavit to the effect that the action had been brought without the affiant's con- sent, and against his will ; that his name had been used without authority ; that he was opposed to the 2Jrosecution of the action, and desired it to be discontinued as to him. A case was cited ^ where certain commissioners had retained counsel to bring an action. A trial had been had, resulting in favor of tlie commissioners, and a new trial granted. At that stage' of the case the commissioners, without substituting another attorney of record, and without the knowledge of their attor- ney of record, compromised the action, authorized the attorney of defendant, in writing, to appear for them and dismiss the action, which he did ; but the motion was resisted by the com- missioners' attorney of record, upon the ground, among others, 1 People c. Mariposa Co. 39 Cal. (iSj; McKiernan v. Patrick, 4 How. (Miss.) 333. 2 Commissioner v. Younger, iii Cal. 147; Clark v. Willett, .S5 Cal. 5;>1:. § 199 RETAINER AND APPEARANCE. 349 that he was still the attorney of record of the commissioners, and as such entitled to manage and control the case, until dis- placed and another substituted of record. The inferior court dismissed the action, but the appellate court reversed the judg- ment, holding in effect that where a party retains an attoi'ney to bring or defend an action, the attorney has a right to control and manage the case until he has been superseded according to the statute. The question there was, whether the court was bound to recognize the attorney of record as possessing the right to manage the case, or could at pleasure ignore him alto- gether, and i-ecognize another as having that right. But in Clark v. Willett^ the question was, whether the court had the power to inquire as to the retainer of the attorney, upon the susceestion of the client that he had abused the license of the court, and brought the action without authority. The court had no doubt about the power, and held that attorneys were the offic- ers of the court, and answerable to it for the proper perform- ance of their professional duties. They appear and participate in its proceedings only by the license of the court ; and if they undertake to appear without authority from the party whom they profess to represent, the act is an abuse of the license. The court may require him to produce the evidence of his re- tainer under the supervisory power which it has over its process and the acts of its officers.^ It has been held that the court may require an attorney to show special authority, upon the application of the opposite party, when justice requires it.^ § 199. Effect of authorized appearance by attorney. — A voluntary appearance by an attorney, if authorized, is as ef- tive for the purposes of jurisdiction as an actual service of sum- mons ; and when an attorney of a court of record appears in an action for one of the parties, his authority, in the absence of any proof to the contrary, will be presumed. A record which shows such an appearance will bind the party until it is proven that the attorney acted without authority. And where suit is brought on a record which shows a voluntary appearance by attorney, it 1 35 Cal. 539. 2 Turner v. Caruthers, 17 Cal. 431; Clark v. Willett, 33 Cal. 540. 3 McKiernaii v. Patrick, 4 How. (Miss.) 333. 350 RETAINER AND APPEARANCE. § 199 is not allowable, under the common-law system of j)leadmgs, under a plea of nul tiel record only, to prove that the attorney had no authority to appear. Though a party may prove that the attorney had no authority to appear, yet he can do this only on a special plea, or on such plea as, under systems which do not follow the common-law system of pleading, is the equivalent of such a plea. A plea of nul tiel record only denies the existence of the record itself, and is met by the production of the record valid upon its face, or an exemplification duly authenticated.^ Whenever the record shows an appearance by attorney, the presumption is that such appearance was an authorized one, especially in the absence of fraud ;^ and even where the record is silent as to the attorney's authority to accept service, and the record discloses such acceptance of service, the presumption of authority to accept such service will also be indulged in.^ It may be considered settled, therefore, that if the attorney is authorized to appear, the jurisdiction over the defendant is perfect, and the subsequent action of the attorney, in the ab- sence of fraud by the adverse party, is binding on the client both at law and equity. The rule that a party cannot in equity find relief from the consequence of his own negligence, or of a mistake of the law, is equally applicable where the mistake or neglect is that of his attorney employed in the management of the case.* 1 Hill V. Mendeuhall, 21 Wall. 453. See, also, Thompson*). Whitman, 18 Wall. 457; Knowles v. Company, 19 Ibid. 58; Bimeler v. Dawson, 4 Scam. 538; Harrod V. Barreto, 2 Hall, 302; Shumway v. Stillman, 6 Weud. 447; Starbuok v. Murray, 5 Ibid. 148; Price v. Hickok, 39 Vt. 292; Judkins v. Company, 37 N, H. 482; Holt V. AUoway, 2 Blackf. 108; Moulin v. Company, 4 Zab. 222; Oilman v. Lewis, Ibid. 248; Aldxioh v. Kinney, 4 Conn. 380; Eager v. Stover, 59 Mo. 87; Hayes v. Shattuck, 21 Cal. 51; Holmes v. Rogers, 13 Cal. 191. 2 Potter V. Parsons, 14 Iowa, 286; Alton v. Gilmanton, 2 N. H. 520; Talbott v. McGee, 4 Mon. 377; Pike v. Emerson, 5 N. H. 393; Gallard v. Smart, 6 Cowen, 385; Buckland?). Conway, 16 Mass. 396; Holker v. Parker, 7 Cranch, 436; Wil- liams V. Butler, 35 111. 544; Leavitt v. Wallace, 12 N. H. 489; Osborn v. Bank, 9 Wheat. 830; McCuUook v. Guetner, 1 Binn. 214; Anderson v. Sutton, 2 Duval, 480. ii Ibid. ; Prince v. Griffin, 16 Iowa, 552. Where the record, in a case in which process has been served, recites that the parties appeared by their attorneys and agreed to the following decree, the authority of the attorneys cannot be questioned on appeal or writ of error. Consent takes away error; and a judg- ment by agreement or compromise cannot be impeached, unless for fraud col- lusion, or like causes. (Dunman v. Hartwell, 9 Tex. 495.) ■tPradish v. Gee, 1 Amb. 229; Giiford t;.. Thorn, 1 Stock. Ch. 702, 722; Jones I'.AVil- liamson, 5 Cold. 371 ; Wynn ti.Wilson, Hemp. 698; Chester v. Apperson, 4 Heisk 639; Shripker r. Field, 9 Iowa, 306; AViuchester v. Grosvenor, 48 111. 517. § 200 RETAINER AND APPEARANCE. 361 § 200. Unauthorized appearance — Dismissal of suit on motion. — When an attorney commences a suit without author- ity, it is the duty of the court to dismiss the same on motion of defendant. The attorney must be actually employed for the purpose before he can rejjresent the party in court. The rela- tion of client and attoi-ney must subsist between them. That relation cannot be ci-eated by the attorney alone. The suitor has a right to select his own attorney. If an attorney is required on a proper showing to produce his authority, and then fails to show it, the suit should be summarily dismissed by the court. The process of the courts is not to be issued, except at the in- stance of a suitor. It must be demanded by him in person or by his authorized attorney. A defendant is not bound to an- swer the merits of a suit commenced without authority from the plaintiff. Otherwise he might be twice compelled to liti- gate the same cause of action. A judgment in his favor in a suit prosecuted without authority would be no bar to a second action brought by the direction of the plaintiff.^ In a case before the Circuit Court of the United States ^ for Pennsylvania, two rules were obtained by the defendant ; one was for plaintiff's attorney to file his warrant of attorney. As to this first rule, Bushrod Washington, J., delivering the opinion of the Court, said : " We think that this rule must be made ab- solute, for it would be strange if a court, whose duty it is to su- perintend the conduct of its officers, should not have the power to inquire by what authority an attorney of that court under- takes to sue or to defend in the name of another ; whether that other is a real or fictitious person, and whether its process is used for the purpose of vexation or fraud instead of that for which alone it is intended. The only question can be as to the time and manner of calling for the authority, and as to the rem- edy, which are in the discretion of the court, and ought to be adapted to the case." In this case there was a statute covering the matter. "But," he continues, "the court not deriving its right to interpose under the statute, will, at the threshold, in- quire by what authority the suit is instituted ; and being satis- fied, either by the production of the warrant of attorney, or by 1 Frye v. Calhoun Co., 14 111. 132. 2 King of Spain r. Oliver, 2 Wasli. C, C. 429. 852 RETALNKU AND APPEARANCE. § 201 any other, even parol evidence that the attorney acts by author- ity, will not in a summary way arrest the proceedings." Especially may the court in its discretion require a warrant to be produced, on proof that the attorney is proceeding without authority for the purpose of oppression, or for any other sin- ister purpose.^ When the proof is called for, any proof, in the absence of other proof to overbalance it, is sufficient, such as an unauthen- ticated power of attorney, a letter, or any parol evidence which raises a reasonable presumption of the existence of authority.^ The attorney may himself be a witness to prove his authority.^ When an attorney sues out a writ of error without the au- thority of the parties named as plaintiffs in the writ, the f)ro- cess will be dismissed, at the cost of the attorney who sued out the process.* An attorney who enters an appearance in a suit without authority, is answerable for the ensuing damages for the injury he may thereby have occasioned the parties.^ § 201. Judgments obtained through unauthorized ap- pearance of attorney. — The subject of the effect of a judg- ment procured by the acts of an unauthorized attorney opens up one of those embarrassing questions about which few agree, upon which the most contradictory opinions are expressed with equal certainty, and which, the more it is discussed, the less set- tled it appears to become. Is a judgment so procured void or voidable, or absolutely conclusive? Must it be attacked di- rectly, or can it be attacked collaterally? Is there a difference in the rule between domestic judgments and the judgments of other States, or foreign judgments ? Is a sale under such a judgment to an innocent third party perfect? Does it pass title, or may it be said that the judgment-creditor has no title to pass? Does the fact of the ability of the attorney to respond pecuni- arily in damages make any difference as to the right of a party 1 Allen V. Green, 1 Bail. 448; SIcKiernan r. Patrick, 5 Miss. 333. 2 Rogers c. Park, 4 Humpli. 480. 3 Hirshfleld v. Landman, 3 B. D. Smith, 208; Scott n. Elmendorf, 12 Johns. 317; Tullock V. Cunningham, 1 Cowen, 256; Pixley v. Eutts, 2 Cowen, 421; Caniff v. Myers, 15 Johns. 246. * Anon. 11 111. 448. 5 Field V. Gibbs, 1 Peters C. C. 155. § 201 RETAIXER AND APPEARAXCE. 353 to relief, or is it a false quantity in the solution of the problem? To investigate all these questions fully would lead us too far into the law of judgments ; but an attempt will be made to pre- sent those views which seem entitled to the most respect, and to state what is settled, so far as the unsatisfactory condition of the law upon the subject will enable us to do so. " The general recital that the defendant appeared, is, even in those States where direct jurisdictional statements are regarded as conclusive, susceptible of explanation and avoidance by show- ing that the appearance was by an unauthorized attorney. It is also thought to involve no dispute with the record to show that the attorney, whom it states appeared, had no authority so to do.^ In these instances, however, and others of a like kind, the courts have relied on the well-known rule that estoppels must be certain, as a reason for admitting evidence that might have been shut out by a clear and positive recital. There was said to be no direct or necessary conflict between an averment on the one part that the defendant appeared, and proof on the other that the appearance was by an attorney, who did not rep- resent the defendant ; and there has been a manifest reluctance to go beyond this, and assume the responsibility of holding that ' an unequivocal allegation that the defendant was served person- ally, or entered a personal appearance, can be disproved by parol evidence.' ^ Nevertheless, numerous cases exist in which the au- thority to controvert the truth of unequivocal allegations found in the record in regard to jurisdiction, Is aflSrmed in express terms or by necessary implication." ^ Where an attorney appears without authority and confesses judgment, the remedy may beagainst him ; or in a proper case, an application may be made to open the judgment. "Where an at- 1 Freeman on Judgments, sees. 5S3, 5(i0; Lawrence v. Jarvis, 32 111. 301; Balt- zett ','. Nosier, 1 Iowa, o88; Price ,u. Ward, 1 Dutch. 225; Arnott v. Webb, 1 Dill. 3«2. ^ Am. Lead. Cas. oth ed. 643. 3 Freeman on Judgments, sec. 563, citing Fiuueran u. Leonard, 7 Allen, 54 ; McDermott r. Clay, 107 Mass. 501; Hoffman v. Hoifman, 46 N. Y. 30; Pollard v. Baldwin, 22 Iowa, 328; Carleton «. Bickford, 13 Gray, 591; Marx v. Fore, 1 Mo. _ 69; Easley v. McClinton, 33 Tex. 288; Norwood «. Cobb, 15 Tex. 500; S. C. 24" Ibid. 551; Rape v. Heaton, 9 Miss. 328; Kerr i'. Kerr, 41 N. Y. 272; Starliuck j). Murray, 5 Wend. 148; Noyes v. Butler, Barb. 613; Kane n. Cook, 8 Cal. 449. See also Chapman v. Austin, 44 Tex. 133. A. & C— 23. 354 EETAINEK AND APPEARANCE. § 202 torney confesses judgment against several partners, under an authority derived from only one, it is the duty of the others to make immediate application to the court to open the judgment. If they omit this, after notice, and permit their lands to be lev- ied on, condemned, and sold, they are concluded by their own acquiescence, if not otherwise precluded from raising the objec- tion against the sheriff's vendee. Giving notice of the objection at the sheriff's sale amounts to nothing more than to show that the party complaining has notice himself of the defect of author- ity, but acquiesces in it by taking no measures to arrest the pro- ceedings.i If the judgment be confessed through fraud and collusion, the party may be relieved against it in equity. But a confession of judgment by counsel representing the case, with the knowledge of the f)arty, is sufficient, without any special authorization to that effect. In attacking a judgment obtained by confession, especially after a long lapse of time, merits must be shown by the applicant.^ § 202. Interference with judgment by a court of equi- ty. — To justify a court of equity in interfering with a judgment at law on the ground of want of authority to appear, the evi- dence should show clearly and unequivocally that such judg- ment was fraudulently and wrongfully obtained without necrli- gence or fault on the part of the judgment -defendant. The burden of proof is with the complainant, and before he is enti- tled to relief he must fully establish what he alleges to be true.^ And this cannot be done for the first time on review.* With this understanding there seems to be no doubt but that a direct action in equity lies against a judgment obtained by the unau- 1 Cyphert v. McClure, 22 Pa. 195. A warrant of attorney to confess a judgment cannot be expressly revoked. The nature of the deht need not be described in the warrant, if it be for a sum certain, (Bldridge v. Fobwell, 3 Blacltf. 208; Odes v. "Woodward, 2 Ld. Eaym. 849.) An attorney confessing a Judgment may be called on to iile his warrant. (Weesy v. Kitchen, 80 Pa. St. 160.) 2 Tippack V. Bryant, 63 Mo. 580; Bradish v. Gee, 1 Amb. 229: Lyon v. Williams, 42 Ga. 168; Davant v. Carlton, 53 Ga. 491. 3 Johnson v. Lyon, 14 Iowa, 431; Thomas v. Steele, 22 AVis. 207; Jennings r. Conn, 11 Iowa, 542; Shroudenbeck r. Company, 15 AVis. 632. * Floyd Co. D. Tompkins, 23 Ind. 348; Denton v. Noj^es, 6 Johns. 29B; Ellsworth V. Campbell, 31 Barb. 134; Pierson v. Holman, 5 Blackf. 482, § 203-4 RETAINER AND APPEARANCE. " 355 thorized appearance of an attorney. But it should be brought with all possible speed after the judgment is rendered. ^ It has been the practice, sometimes by motion and sometimes in chan eery, to relieve parties against judgments so rendered.^ § 203. Collateral attack. — The presumption in favor of the attorney to appear has been said to be not merely prima facie^ but conclusive in all collateral proceedings, and in such proceed- ings the party whose appearance seems to have been made by an attorney will not be permitted to prove that he never author- ized the attorney to represent him.^ But other decisions at least intimate that the authority of the attorney can always be disputed,* unless the acts be subsequently ratified by the client,^ by paying the attorney compensation, or even, perhaps, by si- lence, if he has knowledge of the proceedings." § 204. Consequences of unauthorized appearance — Foreign and domestic judgments. — Many decisions hold that in a suit or direct action on a judgment rendered against a party, upon an unauthorized aj)pearance by an attorney, if that judgment be a domestic one, the party cannot plead in defense his ignorance of the suit, and the attorney's want of authority to appear for him.^ But as to foreign judgments the contrary seems to be now settled, both in the Federal and State courts, 1 Bryant v. W\\\\a,ms,, 21 Iowa, 329. ^Critchfield r. Porter, 3 Ohio, 518; Shelton v. TiflBn, 6 How. 163; Truett v. Wainright, 4 Gilm. 420; De Loui? i'. Meek, 2 Greene, 55: Powell v. Spaulding, 3 Greene, 443; Eidge v. Alter, 14 La. An. 866; Marvel i. Manouvrier, 14 La. An. 3; Hefferman v. Burt, 7 Iowa, 321; McKelvay v. Jones, 2 Har. (N. J.) 345; Price r. Ward, 1 Dutch. 225. ^ 3 Freeman on Judgments, sec. 128; Field r. Gibbs, 1 Peters C. 0. 155; Baker v. Stonebroker, 34 Mo. 175; Reed v. Pratt, 2 Hill, 64; Hofmire ti. Hofmire, 3 Edw. Ch. 174; Am. Ins. Co. v. Oakley, 9 Paige, 496; Garx^entier v. Oakland, 30 Cal. 439- Hamilton r. Wright, 37 N. V. 502; Brown y. Nichols, 42 N. Y. 26. 4 Iless V. Cole, 3 Zab. 125; Shumway v. Stillman, 6 Wend. 453; Shelton v. Trif- fen; 6 How. 163. A recital in a decree that a party was represented by an at- torney does not preclude the party from showing the attorney's want of author- ity. (Chapman v. Austin, 44 Tex. 133.) 6 Eyan v. Doyle, 31 Iowa, 53. c Eeynolds v. Howell, L. E. 8 Q. B. 398; S. C. 6 Moaks' Eng. E. 129; Eobson v. Eaton, 1 Term Eep. 62. 'St. Albans v. Bush, 4 Vt. 58; Campbell v. Bristol, 19 Wend. 101; Lessee of Pillsburyv. Dugan's Admr. 9 Ohio, 117; Hollert v. Montgomery's Admr. 5 Dana, 11- Field V. Gibbs, 3 Peters C. C. 155; 2 Am, L. Cas. 803. 366 RETAINER AND APPEARANCE. § 204 and consequently a judgment-debtor, in an action against him on the judgment of another State, may successfully defend by showing that the attorney who entered an appearance for him had no authority to do so.-" The judgments of other States may be declared on as records and evidences of debt; on a proper plea the- jurisdiction of the courts rendering them may be put in issue, but not the merits of the judgments. A record merely reciting one's having appeared by attorney was held not to be contradicted by a plea alleging that he never was without the jurisdiction of the court, was never served with process, and never did appear. The conclu- siveness of judgments, therefore, as to matters tending to show that the court had jurisdiction, does not extend to such recitals, but only to specific averments of fact, such as an arrest, per- sonal service, or personal appearance, and such general recitals, is prima facie only, may be traversed, and the contrary shown.^ In an action on a judgment of a court of another State, the defendant may defend by showing that such court had no juris- diction of his person ; and he may for that purpose show that he had no legal notice of the original suit, and never authorized any one to use his name or appear for him in that suit; unless, from the record of such judgment, it appears affirmatively, and as a matter of adjudication, that he had legal notice, or duly authorized an apjjearance. And the mere recital in a judgment, that the party " came in," has been held not to show conclu- sively that he had legal notice, or that he appeared in person and submitted to the jurisdiction, or that he authorized any one to 1 Harshey v. Blackmarr, 20 Iowa, 161; Hiudman v. Mackall, 3 Greene. 170; Lat- terett i'. Cook, 1 lo-wa, 1; Baltzell v. Nosier, Ibid. 588; Slielton r. Liffin, 6 How. 164; D'Arcey v. Ketchum, 11 Ibid. 165; Harris r. Hardeman, 14 Ibid. 334; Sher- rard V. Nevins, 2 Ind. 241; Thompson ..■. Emmert, 15 111. 415; Miller r. Gasklns, 2 Rob. (La.) 114; Gleasou o. Dodd, 4 Met. oiS; Aldrich v. Kenney, 4 Conn. 380; Starbuck v. JIurray, 5 Wend. 148; Wilson v. The Bank, 6 Leigh, 570; Norwood V Cobb; 24 Lex. 551; Price o. Ward, 1 Dntch. 225; Hess r. Cole, 3 Zab. 116. ^Gleason v. Dodd, i Met. 333, Per Shaw C. J.; Hall v. Williams, 6 Pick. 232; Bissell V. Briggs, 9 Mass. 462. See Noble v. Gold, 1 Mass. 410; Starbuck ■«. Jlur- ray, 5 Wend. 148; Holbrook c. Murray, 5 Ibid. 161; Shumway i\ Stillman, 6 Ibid. 447; Wilson v. Bank, 6 Leigh, 570; Hoffman c. Stone, 31 Tex. 595; Bartlett i;. Knight, 1 Mass. 401; Mills ti. Duryee, 7 Cranch, 481: Hampton v. McConnell, 3 Wheat. 234; McElmoyle v. Cohen, i:! Peters, 312; Ferguson i. Mahon, 11 Ad. & B. 179; Robson c. Eaton, 1 T. R. 62; Aldrich c. Kinsey, 4 Conn. ;^S0; Thompson p. Whitman, 18 Wall. 457; Knowles v. Company, 19 Wall. 58. § 204 RETAINER AND APPEARANCE. 357 appear for him. And so, in an action in a State, on a judgment of a court in another State, rendered for costs, against a plaintiff in a suit commenced in the latter, he may defend successfully, by showing that he gave no authority to institute such suit, and had no knowledge thereof before judgment was rendered therein.^ In an interesting case in Ohio it appears an action was brought in Ohio to recover on a judgment rendered in Arkansas. Per- sonal appearance was entered in the first suit in Arkansas prior to the civil war. After the latter State had joined the South- ern Confederacy, and while it was in arms against the Union, the defendants being residents of Ohio, the case was tried. The attorney for defendants, who was retained and appeared before the war, continued to do so on the trial of the case, and con- sented to a trial. It was- claimed on ,one side that these facts gave the Court jurisdiction over the person ; but, on the other, that such appearance could confer no power on the court to do an unauthorized act, and that the war and secession of the State worked a revocation of his agency. The court very fully con- sidered the legal and political effect of the secession of Arkansas, and the validity in one State of a judgment rendered in another, which is valid, and shows jurisdiction upon its face, and how far such a judgment is entitled to faith and credit in the other State under constitutional provisions. The court came to the conclusion that an inquiry may be made into the jurisdiction of the court of the sister State, in which a judgment offered in evi- dence was rendered, that such a judgment may be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist, the record will be a nul- lity, notwithstanding it may recite that they did exist, and that the power of the court to render the judgment is an open ques- tion.^ Without going into the general subject, which would call for too extended a discussion, tlie case is so far relevant to 1 Watson V. Bank, 4 Met. :ji->; Gleason c Dodd, Ibid. 3U3. 2 Pennywit v. Foote, ii7 Ohio St. 600. The reader interested in the general subject will find a copious citation of authorities at isage (il8 of the report. See, also, as to the eifect csf the judgments of other States, Freeman on Judgments, 2d ed. chap. 26, and sees. 60i, 60ia. That the jurisdiction of the courts of a sis- ter State may be inquired into collaterally, notwithstanding the recitals in the jitdgment, see especially, Thompson v. Whitman, 18 Wall. 457; Knowles v. Company, 19 Wall. 58; note to Bartlett v. K>night, 2 Proffatt's American De- cisions, 42, where the authorities upon the general subject are revicAved- 358 RETAINER AND APPEARANCE. § 204 the present matter, that it decides that, under the circumstances, the State being in armed rebellion, it was the duty of defendants' attorney to have declined to appear as such, or, if he appeared, to have taken the proper steps to suspend the proceedings. His consent to the heai-ing was not in the interest of his clients, and clothed the court with no jurisdiction, and that therefore the court had none.^ And it may be generally stated in all cases of foreign judg- ments at least, that, though an attorney, who appears and con- fesses judgment for a suitor, is 2yrinia facie to be taken as hav- ing been retained, yet if the fact be otherwise the Court will, upon proof, set aside the judgment or declare it a nullity.^ Counsel are not presumed to have appeared for the mere pur- pose of waiving their client's rights.^ It may be considered, therefore, as settled., that whenever it appears by the record of a judgment of a sister State, that the defendant appeared by attorney, it is fninCi facie, evidence of the fact, but the defendant may rebut the presumption by proof that the attorney named in the record never had any authority to appear for him ; in other words, notwithstanding the recital in the record, he may disjjrove the authority of the attorney to appear.* It seems, that the question of authority of attorneys to appear in an action is, under proper instructions, a question of fact for the jury.^ It may well be asked why these rules should not also apply to domestic judgments as well as foreign. It may be said that, in the case of a foreign judgment, it is impossible, or at least unreasonable, to require the defendant to go to the court of the State which rendered it, and attack it directly by a bill or mo- tion ; hence, he is permitted to plead the want of authority in the attorney, defensively and collaterally : whereas, in the case 1 Pennywit v. Foote, 27 Ohio St. 600, Ashbuni, J. dissenting. See, also, to tlie same effect, Botts & DarnaU «. Crenshaw, Chase, 224; Eaton v. Penny wit, 25 Arli:. 144. See Foote «, Richmond, 42 Cal. 4:)9; Wyatt v. Burr, 25 Ark. 47*;; Cyp- hert ij. McClune, 22 Pa. 195. 2 Dobbins i\ Dupree, 39 Ga. 394. See Scott v. Eaton, 2U Ark. 17. 3 Borkheim u. Company, 38 Cal. G23. t Howard c. Smith, 33 N. Y. Superior Court R. 124; Sliumway r. StiUman, 6 Wend. 447; Starbuok e. Murray, 5 Ibid. 148; Long v. Levy, 1 Hill, 597. But see Brown u. Nichols, 42 N. Y. 27. 6 Howard v. Smith, supra\ Alspaugh v. Jones, 64 X. C, 29. § 204 RETAINER AND APPEARANCE. 359 of a domestic judgment, It may be deemed better to force the party to assail it directly, (thus giving the court an equitable control over the proceedings,) by prohibiting him from resort- ing to the plea of want of authority in the attorney, collaterally, as a defense to a scire facias, or direct action on the judgment. Still, the party is entitled to relief when an unjust judgment, though a domestic one, has been rendered against him by fraud or collusion, or by the appearance of an unauthorized attorney, if the party seeks the relief by bill or motion promptly. ^ In Indiana, and other States, the rule is as follows : Where a judgment is rendered by a court of general jurisdiction, and the record shows that an attorney of the court appeared for the de- fendant and filed an answer, the jurisdiction of the court cannot be controverted unless it be by proof of fraud, or that the de- fendant was not a citizen of the State, nor during the pendency of the proceedings within .the jurisdiction of the court, and had neither been notified of the suit, nor had given authority to an attorney to enter an appearance for him. Under such circum- stances, upon establishing the fact that the appearance was un- authorized, he will be relieved from the judgment. But when a party is within the process of the court, although not served with notice, and an appearance had been entered for him by an attorney, the court will require him to aver in his proceedings to obtain relief from the judgment rendered, that he had a de- fense to the action, and if no rights of bona fide purchasers have intervened, the court will stay proceedings under the judgment while it preserves its lien and permits the party to make his de- fense to the original action, and to the extent he may succeed in that defense, relieve him from the effect of the judgment. And it is considered that this rule gives " full faith and credit to the judicial proceedings of every State " ; the same faith and credit that we give to the records of our own State courts; and al- though the terms "domestic judgments" and "the judgments 1 Harshey v. Blackmarr, 20 Iowa, 161; Per Dillon, Lyon v. Boilviu, 7 111. 629, J.; Denton v. Noyes, 6 Johns, 296; Legere v. Richard, 10 La. An. 669. It is said in Illinois, that if in a suit on a promissory note an attorney appears and has posse.ssion of the note sued on, the inference is that he has authority to conduct the suit; that he had none to prosecute the suit at law, affords no ground of equitable relief; but such a question must be determined in tlie court of law, not one of equity. (Harris v. Galbraith, 43 111. 309.) 360 RETAINER AND APPEARANCE. § 205 of other States " are used in various decisions, and a distinction attempted to be drawn between them as two distinct classes, this rule is considered within the principle upon which all the au- thorities rest.^ But where the defendant has not been within the jurisdiction of the court, it would not be just, it has been said, to compel him to come under that jurisdiction, and estab- lish his defense to the action, in order to obtain relief from a judgment obtained without notice ; and, therefore, the relief granted him must be absolute immunity from the judgment.^ § 205. Effect of unauthorized appearance on innocent third parties. — Decisions in Iowa declare that a judgment pro- cured by the appearance of an unauthorized attorney will be vacated in equity, though such vacation destroys the rights ac- quired by a hona fide purchaser without notice. But the Su- preme Court of California has said relative to other cases : " If an unauthorized appearance by an attorney for a non-resident defendant, who was not served with process, can afterward be shown to invalidate the title of a hona fide purchaser without notice at the executive sale, it stands, so far as I am aware, as a solitary exception to the general rule, and the doctrine ought not to be further extended." ^ But in the Supreme Court of the United States the rule is in favor of the doctrine of the Iowa courts ; for where a party was not amenable to the jurisdiction of a court, and did no act to authorize the judgment, they said he could not be affected by it, or by any proceedings under it. " The judgment being void, for want of jurisdiction in the Court, no right passed (to the purchaser) under the marshal's siile."* Of course, when an appearance has been entered, the claim to deny the authority of the attorney is viewed with disfavor, 1 Wiley II. Pratt, 2:1 Ind. (>2S; Sherrard v. Nevins, 2 Ind. 2il; Pierson i-. Hol- man, 5 Blackf. 482: Shelton v. Tiffin, 6 How. 163; l''loyd r. Tompkins, 23 Ind. 348; Boylan v. Wliitney, 3 Ind. 140; Ellswortli v. Campbell, 31 Barb, 134; Hall v. Williams, B Pick. 232; Bodurtlia v. Goodrich, 3 Gray, 611. ■- Ibid, and CritcliHeld v. Porter, 3 Ohio, SIS; Pierson c. Holmau, 5 Blackf, 482; Sterne v. Bentley, 3 How. Pr. 331; Blodgett v. Conkliu, 9 Ibid, 442; Ellsworth v. Campbell, 31 Barb. 134; Buntoni). Lyford, 37 N. H, 512, 3 Reeve «, Kennedy, 43 Cal, 649; Stokes v. Geddes, 4fi Cal, 17; Harshey c. Blackmarr, 20 Iowa, IHl; Bryan v. Williams, 21 Iowa, 329. See also Hamlin c. McCahill, Clarke Ch. 249, •* Shelton v. TilBn, 6 How, 163, See Freeman on Judgments, sec. 509, § 206 RETAINER AND APPEARANCE. 361 whenever innocent third parties have acquired, or think they have acquired, rights under the judgment or decree. § 206. Efifect of the attorney's pecuniary responsibil- ity. — It is laid down in an early case in Salkeld,^ that " when an attorney takes upon himself to appear, the court looks no further, but proceeds as if the attorney had sufficient authority, and leaves the party this action against him." But this doctrine stated thus broadly has been gradually undermined, and may now, we think, be considered as overthrown. It obliges a per- son to be bound by the unauthorized act of a mere stranger. It binds him by a judgment of a court without a day in court. It relieves the other party of a duty which belongs to him, viz : to serve his process and to see, at his peril, that his adversary is in court ; and it compels the wrong party to look to the attorney. The rule was very soon qualified in the King's Bench. ^ An at- torney appeared, and judgment was entered against the sup- posed client, and the former had no warrant of attorney, and the question was if the court could set aside the judgment. The court said : " If the attorney be able and responsible, we will not set aside the judgment. The reason is, because the judg- ment is regular, and the plaintiff ought not to suffer, for there is no fault in him ; but if the attorney be not responsible or sus- picious, we will set aside the judgment ; for otherwise the de- fendant has no remedy, and any one may be undone by that means." ^ But still this case turns upon the question whether the attorney was or was not responsible, and not upon the exist- ence of his authority. But Lord Mansfield, in another and later case, placed his decision upon the true ground. This was a case where a warrant of attorney was forged, and the basis of the decision was that the " attorney who prosecuted the former suit in the plaintiff's name had no authority given him by the plaint- iff for so doing." * In the United States, Kent, then Chief 1 1 Salk. 8(i. The following concise report of an ancient case foreshadows the same doctrine ; ' ' Might, an attorney, was ^iied at law upon an action of the case, for confessing an action witliout warrant for one Hargate, for whom he iiad been an attorney, wherefore Might sought relief in this court, (chancery) and could not have it, in 1595." (Toth. 15; Gary, 88, 89; li Mod. 16.) i Anon. 1 Salk. 88. 8 See also S. C. 6 Mod. 16; Stanhope c. Firmiu, 3 Bing. N. C. 303; Mudry v. Newman, 1 Cromp. M. & R. 402; Hammond v. Thorpe, 1 Ibid. 6i. * Eobson V. Eaton, (K. B. 1785) 1 T. R. (J2. 362 RETAINER AND APPEARANCE. § 206 Justice of New York, in 1810, referring to the last case in Salkeld, added : ^ " I am willing to go still further, and in every such case (of unauthorized appearance) to let the defendant into a defense," etc. This decision establishes that where an attor- ney appeared for a defendant, against whom a writ had been issued but not served, and without authority from the defendant confesses a judgment which is entered up in vacation, the judg- ment is regular. An appearance by an attorney of the court without warrant is good as to the court, and the defendant has an action against the attorney ; but it is otherwise if there be any fraud or collusion between the plaintiff's attorney and the attorney for the defendant, or if the attorney for the defendant be not responsible, or perfectly competent to answer to his as- sumed client; the court will then relieve against the judgment. And where thei'e is no fraud, the court, in order to protect the plaintiff from suffering by the act of the attorney, and at the same time to save the defendant from injury, will let the judg- ment stand, but stay all proceedings, and let in the defendant to plead if he has any defense. Kent, Chief Justice, further ob- served : " If there had been any collusion between the plaintiff and the attorney (who assumed to act) for the defendant, it would have altered the case ; but there is none shown or pre- tended, and my whole opinion proceeds upon the ground that the plaintiffs have acted in good faith. I am disposed, there- fore, to prevent all possible injury tO the defendant, and at the same tirne save the plaintiffs from harm. This can be done only by preserving the lien which, the plaintiffs have acquired by their judgment, and by giving the defendant an opportunity to plead, if he has any plea to make, to the merits." Later cases in New York have shown a tendency to afford still greater lati- tude for the purposes of defense.^ In the English Exchequer, also, the non- responsibility, or " suspiciousness," of the attorney has been declared to be " but a vague sort of criterion of safety to the defendant." » The 1' Denton v. Xoyes, (i Johns. 296. 2 See Ellsworth r. Campbell, 31 Barb. 134; Jleacham v. Dudley, G Wend. 51i; Williams r. Van Valkenburg, l(i How. Pr. 1-14; xVm. Ins. Co. v. Oakley, 9 Paige, 496; Campbell v. Bristol, 19 Wend. 101. 3 Bayley v. Buckland, 1 Ex.; 1 W. H. & G. 1. See, also, Doe v. Eyton, 3 Barn. & Aid. 785; Hubbard r. Phillips, 13 Mees. & W. 702; 14 Law J.N. S. Exchequer, § 206 RETAIIvER AND APPEARANCE. 363 whole question was examined by Dillon, J., in an able opinion in a case in the Supreme Court of Iowa, in 1866.^ The facts dis- closed were, that the plaintiff was a non-resident of the State, and not personally amenable to its jurisdiction ; that he had no notice, legal or otherwise, of a certain foreclosure proceeding ; that no service, personal or constructive, was made upon him ; that the plaintiff in the foreclosure suit, or his attorneys, pro- cured an answer to be filed by fraudulent representations, and by an attorney who had from the non-resident no right, shadow or color of authority to do so ; that the non-resident had rights which were injuriously affected by that decree : no laches ap- peared on his part ; there was, however, no statement that the attorney was insolvent or unable to respond in damages. Upon this state of facts, the defendant was held entitled to relief against the decree ; and the decree and a sale thereunder were declared nullities.^ Where, however, there is any doubt that there is a want of authority, the judgment will not be disturbed. A clear case must be made out.^ An unauthorized appearance by an attorney may be ratified, even where there is no personal serv- ice, by the payment to the attorney on the part of the client of a consideration or compensation for his services ; and the ratifi- cation may confirm the jurisdiction and validate the judgment.* It will date back to the time when the acts were done.^ If the remedy against an attorney is in any way inadequate for the purposes of justice, as where the party is imprisoned by reason of the unauthorized act, the courts will immediately interfere ;*^ and will also if the proceedings are taken in the name of a party not in existence.'^ This non-responsibility of the attorney is not the best criterion for the safety of the defendant ; and it is held in England that the liability of a defendant for the acts of an attorney appearing for him without authority, whether solvent 103; Williams v. Smith, 1 Dowd. P. C. 632; 5 Ibid. 305; Murdy v. Newman, 1 .Cromp. M. & R. 402; Odell v. Odell, 1 Irisli Ex. 81; Morgan v. Tliome, 7 Mees. & W.400. 1 Harshey v. Blaclcmarr, 20 lovra, 161. 2 See Shelton v. Tiffin, 6 How. 163. 3 Russell r. County, 29 Iowa, 256. * Ryan v. Doyle, 31 Iowa, 53. 6 Williams v. Butler, 35 111. 544. 6 Hambridge v. De la Croue, 3 C. B. 742; 4 Dowl. & L. 400; Anon. 1 Chitty, 193a ; Contra, Alleley v. Colley, Cro. Jac. 694. T Hoskins v. Phillips, 16 Law J. N. S. Q. B. 339. 364 RETAINER AND APPEARANCE. § 206 or not, should be confined to cases in which the course of the proceedings has given him notice of the action being brought against him, and he has not interfered.^ Judgments have been often vacated in cases of unauthorized appearances upon showing, by affidavits, the want of authority in those persons, and that the defendant did not know of their ac- tion in his name when it occurred. The courts have acted in these cases without inquiring wliether the attorneys were solvent or insolvent.^ Mr. Freeman, in his able " Treatise on Judg- ments,"^ after stating this fact, which is undoubtedly true, adds : " But in this respect they probably disregarded the current of the authorities." We think not. It is undoubtedly true that courts have made the solvency or insolvency of the attorney the turning point in granting or withholding relief ; but we think this class of authorities is now out of date, and repudiated by the current of modern authority, as already indicated. And, in- deed, in another portion of Mr. Freeman's work on " Judgments," the statement is made, that it seems to be a rule applicable to the greater part, if not to the entire United States, that a judgment resting upon the unauthorized appearance of an attorney may be annulled in equity, irrespective of the question whether the attorney is responsible or irresponsible, the judgment lien being preserved to secure the plaintiff from loss, should he after- ward recover at a trial on the merits.* This last view'we en- tirely agree with, and go to tlie extent of saying that the pecu- niary responsibility of the attorney, either on a motion to vacate or in a suit in equity, is a false quantity in the problem. Except in so far as it may appear affirmatively that the attorney is pe- cuniarily irresponsible, the reason for granting relief would be still stronger ; but we do not think it necessary, however desir- able, that this should so appear : that is to say, when the attor- ney is shown to be insolvent, a fortiori, the court will open the proceedings upon payment of costs. *• 1 Baj'ley c. Buckland, 1 Ex. 1; IB Law J. N. S. '20i; Norton v. Cowper, 3 Smale & G. 375. 2 YatBS V. Horanson, 7 Roht. 12; McKeliiay r. Jones, 2 Har. (N. J.) 345. '^ Freeman on Judgments, sec. 98. * Freeman on Judgments, sec. 41)9; Ridge v. Alter, 14 La. An. SBIi; Marvel v. Manouvrier, 14 Ibid. 3; Wiley v. Pratt, 23 Ind. 928; Gifford v. Thorn, 1 Stockt. Ch. 702, T22; Allen ii. Stone, 10 Barb. 547; Ellsworth v. Campbell, 31 Ibid. 134; De Louis v. Meek, 2 Greene, 55; Jones v, Williamson, 5 Coldw. 371; Newcomb vi. Dewey, 27 Iowa, 381. 5 Meacham v. Dudley, 6 Wend. 514. § 207 RETAINER AND APPEARANCE. 365 § 207. Laches. — " A defendant, against whom judgment is taken In favor of an innocent plaintiff upon an unauthorized appearance, is bound by such judgment, if it is in any way at- tributable to his laches. A party who has been guilty of no laches may repudiate the acts of a pretended, unauthorized at- torney.i The cases have been said to fall into two classes : First, where the defendant was served with process. In this case, the defendant, who, after being summoned, permits an un- authorized attorney to enter an appearance in his name, or who, in other words, does not inquire as to who has appeared in the suit, is guilty of negligence which postpones him to an innocent plaintiff, who, relying on such appearance by a responsible at- torney, enters judgment, and takes title under such judgment. On the other side, if the appearance was entered by an irres- ponsible attorney, the facts may be such as to require that the plaintiff should inquire whether such attorney, so irresponsible, could have been employed by the defendant. Secondly, where the attorney was not served with process. A plaintiff who, without giving the defendant legal notice by summons, accepts a waiver of summons and an agreement for an amicable action from an attorney, is bound to satisfy himself of the attorney's authority, and if he omits so to satisfy himself, the loss must be on himself.^ A party became the purchaser of a tract of land under an execution sale, subject to a mortgage. Fourteen months and a half after the purchase, a bill was filed to foreclose the mort- gage. The purchaser was made one of the parties defendant to the bill, but was not served with process. The appearance, however, of the defendants, was entered generally. A decree of foreclosure was pronounced and the property sold, the mort- gagee becoming the purchaser. The purchaser under the exe- cution took no steps to redeem, or set aside the decree, not even procuring a sheriff's deed on his certificate of purchase, though the evidence showed he was aware of the foreclosure ; but some six years afterward sold his certificate of purchase to the com- plainant, who obtained a sheriff's deed, and filed his bill for re- 1 Wharton on Agency, sec. SOT; Am. Ins. Co. v. Oakley, 9 Paige, 49S; Legere V. Richard, 10 La. An. 6«9. 2 Bayley v. Buckland, 1 Ex. 1 ; Wharton on Agency, sees. 567, 569. 366 RETAINER AND APPEARANCE. § 208 demption. The land, in the meantime, was constantly occupied under the foreclosure title, and several times changed hands, and at the time of the purchase of the certificate by the com- plainant was occupied by the defendant. It was held for the purpose of allowing a redemption, under such circumstances, evidence could not be received impeaching the authority of the attorneys in entering the appearance of the purchaser under the execution in the foreclosure suit ; that it was the duty of such purchaser, if he wished to redeem, to have come forward within a reasonable time, and asked the deci-ee of foreclosure to be opened as to him ; and that the complainant's equities were no stronger than those of the execution purchaser would be if he were complainant, being chargeable with notice of all the facts with which such purchaser would be chargeable. It will be per- ceived that the laches of the party, and the rights of the inno- cent third persons, all played an important part in this decision.^ § 208. Appearance for a portion of several parties, or for all. — When counsel appears expressly for certain defend- ants, his signature to papers in the case after that time, as attor- ney for the defendants, must be construed as restricted to those defendants for whom he expressly appeared in the first place. And when there are several defendants, and each appears by his own attorney, the proceedings on behalf of defendants must be conducted by their respective attorneys, until the authority is . revoked, or other attorneys substituted. And the attornev for one defendant cannot give notice of motion, or accept service of notice, or stipulate for another defendant for whom he does not appear of record, and this is so although he signs as " attorney for defendants " generally.^ But in actions where there are sev- eral defendants, an appearance by an attorney for the defend- ants generally must be construed ^j;'i?«.a/aCTe, at least, as an ap- pearance for all.^ Whenever an appearance by attorney is entered on the rec- 1 Kenyon v. Slireck, 52 111. 382. 2 Spangel v. Dellinger, 42 Gal. 148; Hobbs v. Duff, 43 Cal. 485; Buckland ).i. ■Conway, 16 Mass. 36U. 3 Keuyont). Shreck, 52 111. 382; Am. Ins. v. Oakley, 9 Paige, 498. See Joues V. Hunter, 4 How. (Miss.) 342; which probably goes too far in holding a party •estopped from denying authority. §§ 209-10 EETAINEE AND APPEARANCE. 367 ord, it is always presumed that it is done by the authority of the party. A plea filed by attorney will be considered as an appearance for all the defendants, unless there is something in its language to restrict its application.' § 209. Appearance for a partnership. — The entry by an attorney of his general appearance for the defendants, in an action against a partnership, must be construed to be an appear- ance of the partners as partners, and for the purpose of defend- ing the action against the partnership, and not as an appearance for the partners individually, severally, and personally, so as to render a judgment against the partnership in such action bind- ing on an individual partner in another jurisdiction, by whom such appearance was not authorized.^ In an action against the members of a commercial partnership, where only one member was served with process, and the attor- ney employed by him appeared for the defendants generally, and judgment was rendered against all of the defendants, it was held that such a judgment in Mississippi was regular, and could only be inquired into by the defendants who were not served with process making affidavit of that fact, and that they never employed the attorney, and on showing also that they had a good and legal defense to the action, of which they might have availed themselves if notice had been given.^ § 210. Appearance by attorney in appellate courts. — When attorneys of record in the court below are retained as counsel for defendant in error in the appellate court, no formal notice of appearance is required. The adverse counsel should recoo-nize and treat the attorneys who appeared of record in the lower court as counsel in the higher court, unless otherwise in- formed by actual notice.* When notice of appeal is signed by an attorney of the court, the presumption is that he had author- ity to take such action.'^ 1 Schirling u. Scites, il Miss. 644; Rust t). Frothingham, Breese, 260; Jackson r. Stewart, 6 Johns. 34; Jones v. Hunter, 4 How. 342; Henderson v. Haines, 5 JIow. 52.t; Smitlit). Boroditch, 7 Pick. 137. ^ Phelps V. Brewer, 9 Cush. 390. = Walworth v. Henderson, 9 La. An. 339. * l<'rost V. Lawler, 34 Mich. 235. 5 Ricketson v. Compton, 23 Cal. 636. 368 RETAINER AND APPEARANCE. § 211 § 211. Defendant's remedy against attorney l^ringing suit without authority. — In the case of an attorney's com- mencing an action without authority, he is liable, on a summary application to the court, or by action, to either party who may happen to be aggrieved thereby. The defendant may have the proceedings set aside and make the attorney pay the costs,i and this even after judgment, and though the attorney act inno- cently on a forged authority.^ If the defendant pays the amount of the judgment, and then discovers that he has thus been improperly sued, he may recover back from the attorney both the debt and costs, in an action for money had and re- ceived.^ If the defendant has been arrested, or otherwise in- jured by the proceedings, he may bring a special action for damages.* If the defendant is successful in the suit brought by an unauthorized attorney, and obtains a verdict, and the plaintiff is still insolvent and unable to pay the defendant's costs, the court may make the attorney liable for such costs.° An attorney who appears or acts for another, without his as- sent, is precluded from recovering his costs for so doing from the party himself,^ or by means of any lien which may attach on the papers in the cause, and on the proceeds of the action.'^ The attorney is moreover liable to penalties of the laws against maintenance, and to actions for damages which may be sus- tained either by the party himself ^ or the opposite party ,^ and may also be punished by attachment for misconduct,^" and made liable for the costs of the proceedings so improperly taken by him." 1 Doe 11. Roe, 3 Dowl. O. S. i96. 2 Robsoii V. Baton, 1 T. R. fi2. 3 Dupeu V. Keeling, i Car. & P. 102. ■• Anderson «. Watson, 3 Car. & P. 214. 5 Hammond '•. Thorpe, 1 Cromp. M. & R. Bo; 2 Dowl. O. S. 721. 6 Spurrier v. Allen, 4 Car. & K. 210; 5 Mod. 205. ' Abbott r. Rice, 3 Bing. 132, 8 Alleley c. CoUey, Cro. Jac. 694; Anon. 1 Salk. 88; ^Yestaway f. Frost, 17 Law J. N. S. Q. B. 286 ; 6 Johns. 34; 6 Johns. 296; 4 Mou. .377; 2 Har. & G. 374; Henck v. Todhunter, 7 Har. & J. 275; 7 Johns. 539; Peters C. C. 155; 7 Pick. 138; 1 Tyler. 304. 9 Sonter v. Watts, 2 Dowl. 263; Dnpin o. Keeling, 4 Car. & P. 103; Anderson v. Watson, 3 Car. & P. 214. i» 2 Hawk. P. C. chap. 22; 6 Johns. 296. 11 Hubbard v. Phillips, 14 Law J, N. S. Ex. 103; S. C. 13 Mees. & W. 702; 2 Dowl. & L. 707. §§ 212-13 RETAINER AND APPEARANCE. 369 § 212. Remedy of the party whose name is used. — The party whose name is used without his authority is not prejudiced by the proceedings, at all events, before judgment.^ The usual course is to apply to set the proceedings aside, as taken without authority, and this will especially be done in cases of fraud and collusion.^ This com-se is open to either party,^ and in all cases, where a party applies promptly to set aside proceedings in his behalf, taken without authority, the court will interfere to pro- tect him ;* but the authority of an attorney will not be questioned kt the instance of a stranger to the record.*^ Where an attorney brings an action without the authority of the plaintiff, the lat- ter is entitled to have the proceedings stayed without payment of ccets.** § 213. Withdra^val of appearance.— Attorneys cannot withdraw their appearance in a cause without the permission of the court, and if it is withdrawn, and the record on appeal is silent as to the ground of withdrawal, the court will presume it was done upon satisfactory evidence to the inferior court:^ But the court may allow a plea to be withdrawn on motion, when put in by an unauthorized counsel'. A plea filed by a mere vol- unteer counsel, not recognized by the party or his regular coun- sel, nor acquiesced in by either, may be withdrawn on motion, and it is error to refuse such withdrawal.^ Where an attorney on the record applies for permission to have his appearance stricken out, the presumption is that he does it by the authority of his client, and the client is not thereby entitled to a con- tinuance of his case.^ 1 Robson V. Eaton, 1 Term Rep. «3; Davies v. Eyton, 3 Barn. & Adol. 785; Odell V. Odell, Jones, (Ir.) Ex. 81; Morgan w. Thorne, 7 Mess. & W. 310. 2 S Johns. 296. A ratification of the proceedings of an attorney in a suit, if made without full knowledge of all the material facts, will not bind the client . (3 Mason, 405.) 3 Hubbard v. Phillips, 14 Law J. N. S. Ex. 103; 13 Mees. & W. 702; 2 Dowl. & L. 707; Hoskins v. Pliillips, 16 Law J'. Q. B. 339; Robson t>. Eaton, 1 Term Rep. 62; Doe d. Phillia, 2 Chit. 170; Mudry v. Newman, 1 Oromp. M. & R. 402; 12 Mod. 218; 3 Ham. Ohio, 518. ■1 Williams r. Smith, 1 Dowl. Pr. 632. 6 Bryan v. Taylor, Wright, 245. « Reynolds v. Howell, 8 Law R. Q. B. 398. ' Symmes i>. Major, 21 Ind. 433. 8 Bell r. Usury, 4 Litt. 384. 9 Henok v. Todhunter, 7 Har. & J. 275. A. & C— 24. 370 RETAINER AND APPEARANCE. § 214 § 214. Practice. — The proper practice to question the right or authority of the jjerSon who institutes a suit, is to obtain a rule of court upoi; him to show cause by what authority suit is brought in the name of another for his benefit.^ But this order will not be granted on a mere suggestion, nor in a doubtful case. A clear and sufficient showing must be affirmatively made.^ Facts must be stated by affidavits. An allegation that one is informed and believes that the attorney has no authority to bring suit is not enough, without more. In applications to set aside defaults, on the ground of want of authority on the part* of plaintiff's attorney to bring the suit, the original affidavits should show a defense on the merits, and clearly establish the lack of authority. Counter affidavits may also be used.^ Courts have sometimes pursued the course, when a proper show- ing was made, of staying proceedings and letting in the defend- ant to plead his defenses, if any he should have, while at the same time they allowed the judgment to stand as a lien.* In cases which have not gone to jndgment another mode, sanctioned by some authorities, is for the defendant to move the court, upon proper affidavits, to dismiss the suit, upon the ground that it was not authorized by those in whose names it was brought. If an attorney, on such a motion, and after reasonable notice of it, fails to show his authority, the court may dismiss the suit. But it is not admissible either, upon a mere suggestion at the bar by the adverse party or his attorney, to deny the right of a party to appear by the attorney of record, or to deny that the attorney so appearing has full authority to prosecute the suit. Want of authority to appear is not a proper subject to be pleaded in abatement.^ When reasons are shown by affidavit, why the interest of an adverse party are jeopardized by presenting suits without the leave or consent from the real owner of the demand, the au- thority ought to be shown. The attorney's authority cannot be capriciously demanded. Probable cause must be shown. But 1 Lyon V. Glidwell, 8 Yerg. 1. 2Handley«. Stat'elor, 6 Litt. 186; Legere v. Kichard, 10 La. An, 66!); Camp- bell V. Aroenaux, 6 La. An. 120; State v. Houston, 3 Harr. (Del.) 15; Pierson v. Holman, 5 Blackf. 482. 3 Eeed v. Curry, 35 111. 536. < Floyd V. Tompkins, 23 Ind. 348; Denton v. Noyes, 6 Johns. 296; Ellsworth v. Campbell, 31 Barb. 134. 5 Turner v. Carutliers, 17 Cal. 431 ; McKiornan v. Patrick, 4 How. (Miss.) 336. § 214 RETAINER AND APPEARANCE. 371 when a case demands the disclosure, and a warrant of attorney is called for, it must be directly from the client, or an author- ized agent. Letters written by the client to third persons, in which no particular suit is specified, which express gratification that a certain person had been employed in some controversy between the plaintiff and present defendant, are not sufficient to constitute a warrant of attorney, when one is demanded.^ When a party repudiates the authority of an attorney at law to have acted for him, it should be supported by his own oath, and not that of an agent. The affidavits should state in what cause and on what occasions the attorney acted without author- ity.^ When the defendant makes affidavit that he never em- ployed the attorney, and no process has ever been served on him, if he can show that he had a good and legal defense to the action, of which he might have availed himself if he had been served, he has a right in equity, at least, to interpose that de- fense.^ No writ of error lies from an order of court refusing to permit an attorney to appear in a cause for want of authority.* The defendant, if he intends to question the authority of an at- torney in bringing a suit, should do so at the earliest practicable moment. There are cases which hold that when the pleadings for defendant have been filed and the issues made up, and es- pecially when the case is called for trial, it is too late for the defendant to demand of the plaintiff's attorney his authority for appearing.*^ 1 McAlexander c. Wright, 3 Mon. 190; Day v. Squires, 63 N. C. 254; If an at- torney who is required to produce his authority to bring a suit, flies the affidavit of the plaintiff's agent, that he was directed by the plaintiff 1^0 cause suit to be brbught, and that he employed said attorney in pursuance of said direction, this constitutes a s ufflcient showing of authority. (Hughes c. Oshorn, 42 Ind. 450. ) 2 Handley v. Statelor, 6 Litt. 186; Legere v. Richard, 10 La. An. 66i>; Campbell V. Arcenaux, 3 La. An. 558; Boykin v. Holden, 6 La. An. 120. 3 Walworth v. Henderson, 9 La. An. 339. 4 Ex parte Gillespie, 3 Yerg. 325. 5 Rowland v. Gardner, 69 N. C. 53; Rice v. Rice, 66 N. 0. 377. In California, an attorney having a license from another State, but not admitted to the courts of the former State, although accustomed to practice there and recognized by the bar as an attorney, has been held to be an officer of the court; and the entry of an appearance by such an attorney was held to be of the same effect as though the attorney had been admitted to practice in the courts of California. The court placed the ruling on the ground tliat he was an attorney of the court " de facto." (Garrison v. McGowan, 48 Cal. 592.) Under this theory it is somewhat difficult to ascertain the precise use or function of a license to practice law in that State. An attorney at law " de /ac«o " wojild seem to be clothed with as much authoritj' as an attorney on the rolls. 372 AUTHORITY AND POWERS. CHAPTER X. AUTHOBITy AND POWERS OF ATTORNEYS BY VIRTUE OF THEIR RETAINER. § 215. Re.suU,s flowing from the retainer. § 216. Law of principal and agent applicable. . § 217. Authority and powers. § 218. Things that an attorney may do by virtue of his general retainer. § 219. Things an attorney may not do by virtue of his retainer without special authority. § 220. ('ontrol over conduct of suits and proceedings . § 221. AVhen attorney may exercise his discretion. § 222. Binding effect of attorney's acts as against the adverse party. § 223. Authority to make admissions binding upon the client. § 224. Implied admissions. § 225. Attorney's admissions to prove his own authority. § 226. Admissions of clerks, etc. § 227. Recalling admissions before judgment. § 228. Authority to compromise litigated claims, and to make settlements. § 229. Negligent compromise. § 230. Notice of want of authority to compromise. § 231. No compromise after judgment. § 232. Authority to demand and receive payment. § 233. Authority to refer or submit to arbitration. § 234. Collateral matters. § 235. Authority to .stipulate that cause of action shall not abate. § 236. Authority to stipulate for continuance. § 237. Authority to receive notices. § 238. Effect of judgment on authority. § 239. Control over judgment and execution. § 240. Authority to satisfy judgment. § 241. Vacating judgment. § 242. Authority after judgment. § 243. Auxiliary proceedings. § 244. Authority of law partners. § 245. Authority of law clerks. § 246. Authority to employ substitutes. 5 247. Ratification by the client. § 248. Dsration of authority. § 249. Termination of the relation and of the authority. § 250. By revocation of authority, and change and substitution of the attorney. General rules. § 251. In England. § 252. In United States. § 253. Change after judgment. § 254, Effect of the substitution on the attorney changed. § 255. By withdrawal of attorney. § 256. By death of attorney or client. §§ 216-16 AUTHORITY AND POWERS. 373 § 215. Results Qo'vtring from the retainer. — Having con- sidered in the preceding chapter, the retainer of the attorney and his general authority to appear, it now seems proper to investi- gate the results of the retainer, the authority and power with which the attorney is invested by reason of that retainer, and what acts the attorney may rightfully and authoritatively un- dertake to perform, without any further delegation of power from his client. In doing this an inquiry will be made as to his general authority, and as to how far the law of agency is ap- plicable in the premises, as to the attorney's control over the judgment or execution ; his authority to make admissions bind- ing upon his client ; his right to compromise suits and make set- tlements ; his power to demand and receive payment for his cli- ent ; the extent of his authority in collateral matters ; when he may employ substitutes ; what the result of the client's rati- fication of his acts may be ; and the duration and termination of his authority by revocation, substitution, withdrawal, or death of the attorney. § 216. The 'law of principal and agent is generally ap- plicable to the relation of attorney and client. The client is bound, according to the ordinary rules of agency, by the acts of his attorney, within the scope of the hitter's authority.^ " This includes the right to demand and receive payment in money of the client's debt ; and part payments are within his power to receive, as well as payments in full.^ As long as he appears as attorney on record, bona fide payments to him dis- charge the debt, no matter what private instructions he may have received from his client."^ But as in other cases of agency, the attorney, to bind the client, 1 Wharton on Agency, sec. 580; Kussell r. Lane, 1 Barb. .5111; Lawson v. Bet- tison, 12 Ark. 401; Sampson v. Obleyer, 22 Cal. 200; Greenlee «. McDowell, 4 Ired.. 481; Fairbanks v. Stanley, 18 Me. 2(16; Rice v. Wilkins, 21 Me. .558; Bethel V. Carmack, 2 Md. Ch. 143; Chambers v. Hodges, 23 Tex. 104; Nave r. Baird, 12 Ind. 318; Painter v. Abel, 8 L. T. N. S. 287. 2 Wharton on Agency, sec. 580; Miller v. Scott, 21 Ark. 390; Heard i>. Lodge, 20 Pick. 53; Bryansr. Taylor, Wright, 245; Langdon v. Potter, 13 Mass. 320; Mc- Carver v. Nealy, 1 Greene, 360; Brackett v. Norton, 4 Conn. 517; Gray v. Wass, 1 Greenl. 257; Branch v. Burnley, 1 Call. 127; Uucett v. Cunningham, 39 Me. 386; Commissioner v. Rose, 1 Desaus. 469; Pickett v. Bates, 3 La. An. 627. * Ibid. State v. Hawkins, 28 Mo. 366. 374 AUTHORITY AND POWERS. § 217 must sometimes be expressly authorized. The general princi- ple " will not sustain the payment of the principal of a mort- gage to a solicitor employed to procure its assignment, the client retaining possession of the instrument.^ Nor payment to a de- ceased person's attorney of a debt due the estate of the deceased ; ^ nor a collusive receipt based on private arrangements between the attorney and the opposite side ; ^ nor payment to an attor- ney in the cause who is not the attorney on record ; * nor the sale or assignment of a claim to a stranger without express au- thority ; ^ nor the transfer of a promissory note put into his hands for collection."'' § 217. G-eneral authority and po-wers. — The effect of a retainer to prosecute or defend a suit is to confer on the attor- ney all the powers exercised by the forms and usages of the court in which the suit is pending.'^ He may receive payment ;^ may bring a second suit after being nonsuited in the first for want of formal proof ; ^ may sue a, writ of error on the judg- ment ; ^^ may discontinue the suit ; ^^ may restore an action after a nol pros.^"^ radij claim an appeal and bind his client by arecog- 1 Wharton on Agency, sec. 581; Wiliams v. Walker, 2 Sandf. 535. 2 Clark V. Richards, 3 B. D. Smith, 8!l. 3 Child r. Dwight, 1 Dev. & B. Eq. 171; Chambers c. Miller, 7 Watts, G3; Craig V. Ely, 5 Stewt. & P. 354. * Wurt V. Lee, 3 Yeates 7. 5 Penniman v. Patchen, 5 Vt. 340; Campbell's Appeal, 29 Pa. 401; Rowland i'. State, 58 Pa. 19B; Fassit u. Middleton, 47 Pa. 214; Held !>. Jervais, Walk. Mich. 431; Card v. Wallridge, 18 Ohio, 411. BTerhune v. Colton, 10 N". J. Eq. 21; White v. Hildreth, 13 N. H. 104; Child v. Eureka, 44 N. H. 354; (4oodfellow />. Landis, 36 Mo. *168. ' A client who put.s his case against another into the hands of an attorney for suit, is presumed to authorize and sanction such action a.s the latter, in his superior knowledge of the law, may decide to be legal, proper, and necessary in the prosecution of the demand, and whatever adverse proceedings the attorney may take are to be considered, so far as they affect the defendant in the suit, as approved in advance by the client and therefore his act; even though they prove to be unwarranted by the law. As to trespasses upon third parties, the rule is different. (Foster v. Wiley, 27 Mich. 244.) ' 2 Greenl. Ev. sec. 141; Langdon v. Potter, 13 Mass. 320: Brackett r. Norton, 4 Conn. 617; Gray )■. Wass. 1 Greenl. 267; Erwin r. Blake, 8 Peters, 18; Com- missioners w. Rose, 1 Desaus, 41ii); Hvidson v. .Johnson, 1 Wash. 10; Ducett v. Cunningham, 39 Jle. 38B. 9 Scott «. Elmendorf, 12 Johns. 315. 1" Grosvenor c. Danforth, l(i Mass. 74. 11 Gaillard v. Smart, 6 Cowen, 385. 12 Reinhold v. Alberti, 1 Binn. iW. § 217 AUTHORITY AND POWERS. 376 nizance in his name for the prosecution of it ; ^ may submit the suit to arbitration ; ^ but, it is said, only under rule of court.^ In the absence of fraud the client is concluded by the acts and even by the omissions of his attorney.* A general authority to com- mence suits will warrant an attorney in commencing a suit and attaching property, and will render the client responsible for any damages occasioned thereby ; ^ but a plaintiff's attorney can- not, under his general authority, purchase land sold under an execution issued in the cause for the benefit of and as trustee for his client.^ A ratification of the proceedings of an attorney in a suit is invalid, if made without full knowledge of all the material facts. '^ Besides having the conduct of the mere formal proceedings, the law implies an authority arising from the retainer to act for the client in all points of doubt or discretion ; the principal being compelled, at common law, to fulfill everything that is done by his attorney, whether by judgment or final concord.® An attorney may, on his general retainer in a cause, suffer judgment for his client ; ^ but this is a power that must be ex- ercised with extreme caution.^" He is also authorized to receive payment, or satisfaction,^^ or waive irregularities.'^ In the absence of proof to the contrary, such acts as accept- I Adams v. Robinson, 1 Pick. 462. ^ Somers v. Balabrega, 1 Dall. 16i: Holker v. Parker, 7 Craneli, 436; Buckland V. Conway, 16 Mass. 396; Abbe >k Rood, 6 McLean, 196. 8 Markley v. Amos, 8 Rich. 468. ■• Lewis V. Sumner, 54 Mass. 13 Met. 269; Smith v. Bossard, 2 McGord, 406; Lawson v. Bettison, 12 Ark. 401; Bethel Clmrch v. Carmack, 2 Md. Ch. 143; Cireenlee v. McDowell, 4 Ired. Eq. 481; Chambers v. Hodges, 23 Tex. 104; Samp- son V. Ohleyer, 22 Cal. 200; Russell v. Lane, i Barb. 519; Wieland v. White, 109 Mass. 392; Moulton v. Bowker, 115 Mass. 36; Jenney «. Delesdernier, 20 Me. 183; Rogers ik Greenwood, 14 Minn. 333, 5 Fairbanks!). Stanley, 18 Me. 296. 8 Beardsley v. Root, 11 Johns. 464. ' Williams v. Reed, 3 Mason. 405. 8 Co. Litt. 52; Gray v. Gray, 2 Roll. R. 63; 2 Yates, .546. 9 Payue v. Chute, 1 Roll. 365; Anon. 12 Mod. 440; 6 Johns. 2^6; 4 Mon. 377; 5 N. H. 3113. i« Ibid. II Yates v. Freukleton, Doug. 623; Powel .'. Little, 1 W. Black. 8; Griffiths);. Williams, 1 T. R. 710. I'^Latuch V. Pacherante, 1 Salk. 86. The attorney, though authorized, is not bound to receive money on an execution, if he prefers his client should receive it. (4McCord, 259.) g76 AUTHORITY AND POWERS. § 218 ing service of process will be presumed to be authorized.^ 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 to determine.^ The rule that the authority of an attorney at law cannot be disputed, only applies when he acts within the scope of his authority and the limits of duties which his profession imposes on him. When disputed, the authority of an attorney at law not of record re- quires proof as in other cases of agency.^ § 218. What the attorney may do by virtue of his general retainer. — He may also sue out an alias execution ; * may receive livery of seizin of land taken by extent;^ may waive objections to evidence, and enter into stipulations for the admission of facts, or conduct of the trial ; ^ and for release of bail ; " may waive notices, give extensions of time to file, pa- pers, and confess judgment ; ' and may open a default which he- has taken, (whether properly or improperly) and vacate the judgment entirely, even though (it has been held) his client has instructed him to the contrary. And this, on the theory that a client has no right to interfere with the attorney in the due and orderly conduct of the suit, and certainly cannot claim to reta,in a judgment obtained, and an execution issued fraudulently.® When a sworn attorney enters his appearance for a party, the party is bound by any admissions made by him in writing, though out of court, concerning the facts in the cause, until the appear- ance is withdrawn, or the party revokes the attorney's author- ity, and gives notice of the revocation ; and until the appearance is withdrawn, or the authority revoked and the revocation noti- ' Oonrey ». Brenliam, 1 La. An. 1397. 2 Alspaugh r. Jones, Gi N. C. 29. 8 Succession of Bai-r, 8 La. An. 458; Ex parte Gillespie, 3 Yerg. 325. A married woman may charge lier separate estate by directing her attorney to allow judgment to he taken against her, thougli she was not liable in the action. (Palen i.. Starr' 7 Hun. 422.) * Cheever v. Merrick, 2 N. H. 378. 5 Pratt V. Putnam, 13 Mass. 363. 6 Alton V. Gilinauton, 2 N. H. 520. ' Hughes V. Hollingsworth, 1 Murph. 14B. 8 Pike V. Emerson, 5 N. H. 393; Talbot v. McGee, 4 Monr. 377 ; Bank v. Geary, 5 Pet. 99. 9. Bead v. French, 28 N. Y. 293. § 218 AUTHORITY AND POWERS. 377 fied, the party cannot give evidence on the trial of the cause, that the attorney had no authority in fact.^ Stipulations made in open court by the attorney in respect to a pending cause are, when free from fraud and authorized, binding on the client, and cannot be repudiated by the successors in employment of the attorney who made the agreement.^ Among other acts which the attorney is authorized to perform by reason of his general retainer, and without any special au- thority for each particular act, are the following : To receive payment of the debt, and to receipt therefor ; and such payment amounts to payment to the plaintiff, and the lat- ter is bound by the receipt.^ Where the debt has been paid to the plaintiff's clerk, after writ issued and before service, and the attorney is aware of the payment, he has no right to pro- ceed further with the action, although he will be entitled to the costs of his writ;* to demand and receive costs ;^ and to order the sheriff to withdraw from possession under a fi. fa.^ But an attorney of record has not, by virtue of his retainer, any implied authority to discharge out of custody a defendant in execution, before he has received payment of the sum recovered in the action. He must have special authority from the plaintiff for such purpose. "^ An attorney of record has power to verify papers by affidavit,** to waive such verification,^ to accept service,^" to discontinue the 1 Lewis 0. Sumner, 13 Met. 269; Kent v. Ricards, 3 Md. (;h. 3i»2; Fowler v. Mor- rill, 8 Tex. 153. But see Hess v. Cole, 3 Zab. ll(i. 2 I.ockwood V. Black Hawk Co., .34 Iowa, 235. 3 Yates V. Freckleton, 2 Dong. ei23; Varley c. Garrard, 2 D. C. P. 4i)0. * Wyllie f. Phillips, i Scott, 474; 5 D. P. C. 644; 3 Biug. N. C. 776. 5 Mason c. AVliitehonse, 4 Bing. N. C.692; 6 Scott, 575. 5 Levi V. Abbott, 4 Ex. 583; 19 Law J. Ex. 26. But see Foster i'. Rowland, 7 Jut. N. S. 998: Baber v. Harris, 2 W. W. & H. 53. ' Savary v. Chapman, 3 Perry & D. 604; 8 D. P. C. 656; 4 ,Tur. 411; 11 Ad. & E. 829; Connop v. Challis, 2 Ex. 484; 6 Dowl. & L. 48; 17 Law J. Ex. 319. See 15 and 16 Vict. chap. 76, sec. 124. An acceptance of service by the attorney of record of a citation of appeal, will be presumed to be authorized by liis client, in the absence of contrary proof. (Ingraham c. Richardson, 2 La. An. 841.) 8 Wright V. Parks, 10 Iowa, .342; Bates v. Pike, 9 "Wis. 224; Wharton on Agency, sec. 585. 9 Smith V. Mulliken, 2 Minn. 319. 1" Hofferman v. Burt, 7 Iowa, 320. When service of a notice of motion for a new trial is accepted by one attorney for another who was his associate on the trial, each, however, api^earing f or different defendants, it will be presumed that he had authority to accept the service, if the point is raised for the first time in an appellate court. (McCreary v. Everding, 44 Cal. 284.) 378 AUTHORITY AND POWERS. § 218 suit/ to appeal from a decision,^ to accept a statement of evi- dence instead of a formal deposition,^ to direct and control an attachment on mesne process,* to release before judgment an attachment of real estate,^ to restore an action after a nbn pros., though without his client's consent," to limit the effect of a judg- ment,'^ to admit facts on the trial of a cause, and to admit facts by writings out of court.^ A counsel in a cause has power to enter into a stipulation in a suit in which he is employed, there being no unfairness, and the court will not on motion set it aside.* Such admissions are evidence against his client, though his imere statements in the course of conversation are not. If a fact is admitted by the attorney on the record, with intent to obviate the necessity of proving it, he must be supposed to have author- ity for this purpose, and his client will be bound by the admis- sion ; but it is clear that whatever the attorney says in the course of conversation is not evidence in the cause, and admis- sions made previous to the commencement of the proceedings are inadmissible, without express proof of authority from his principal.^" An attorney of record also has power to agree, dur- ing the pendency of an action, that after judgment, execution shall be postponed.^^ He has power to waive objections to inter- rogatories.'^ The attorney intrusted with a note for collection by suit is authorized to sue out the process of attachment, and his client is liable for the actual damage if the process is wrongfully 1 Gaillard ;;. Smart, 6 Cowp. 385. 2 Adams v. Robinson, 1 Pick. 462. 5 Lacoste v. Roberts, 11 La. An. 33. ■i Jenny v. Delesdernier, 20 Me. 183. 5 Moulton V. Bowker, 115 Mass. 36. 6 Reinhold v. Alberti, 1 Binn. 469. ' Union Bank v. Geary, B Peters, 98. 8 Talbotw. McGee, 7 Mon. 377; Pikew. Emerson, 5 N. H. 293; Gilkeson k. Sny- der, 8 Watts & S. 200; Farmers' Bank v. Sprigg, 11 Md. 389; Smith r. Dixon, 3 Met. (Ky.) 438; Wenans v. Lindsay, 1 How. (Miss.) 557 ; Starke v. Kenan, 11 Ala. 819; Lewis v. Snmner, 13 jSIet. 269. 9 Farmers' Bank v, Ketclium, 4 McLean, 1'20. 1" Wagstaff V. Wilson, 4 Barn. & Adol. 339 ; Young v. Wright, 1 Camp. 140; Parkins v. Hawkshaw, 2 Stark. 240; Milward v. Temple, Ibid. 375; Gainsford v. Grammar, 2 Camp. 9; Elton i\ Larkins, 1 Moody & R. 196; S. C. 5 Car. & P. 385; Marshall n. Cliffs, 4 Camp. 133. 11 Wieland ti. White, 109 Mass. 392; l^nion Bank v. Georgetown, 5 Peters. Welsse /'. New Orleans, 10 La. An. 46. 5 Faviell v. Eastern, etc. 2 Ex. 344; 2 Dowl. & L. 54. See, also. Fake v. Smith, 7 Abb. Pr. 108; 2 Abb. Ct. of App. Dec. 76; TifCany v. Lord. 40 How. Pr. 481. 6 Hoffenberth i: Muller, 12 Abb. Pr. X. S. 222. " Shaw V. Kidder, 2 How. Pr. 244. 8 Barrett v. Third Avenue, 45 N. Y. 628; Gaillard c. Smart, 6 Cro. 383. » People V. Mayor, 11 Abb. Pr. 66; Bates v. Voorhies, 20 N. Y. 525. i» Planters' Bank v. Massey, 2 Heisk. 360. 11 Burbank v. Company, 24N. H. 552; Goodrich v. Railroad, 38 Ibid. 390; Page V. Brewsters, 54 Ibid. 184. 12 Hanson v. Hoitt, 14 Ibid. 56. 380 AUTIIOKITY AND POWERS. § 219 on execution ; ^ and if one of a firm waives it, and the firm dis- solves, and the recipient fails to pay it over, the others are liable.^ An attorney for a client residing in another State is authorized to use all reasonable and usual means to secure his client's claim. He may indemnify an officer for making a levy directed by him in good faith and upon reasonable grounds ; and if he indemni- fies the officer by his own bond, he may recover from his client what he is obliged to pay tliereon.^ If orders be given by the creditor to an attorney "to obtain immediate security for a de- mand,'' the whole manner of doing it is left to the disc^-etion of the attorney, and the creditor is bound by his acts.* § 219. What the attorney may not do by virtue of his retainer and without special authority. — But the attorney has no authority to execute any discharge of a debtor but upon the actual payment of the full amount of the debt,** and that in money only." But it has been held that he may take pay- ment of a .part in money and the residue in a short undoubted note." The attorney has no power to release sureties,^ nor to enter a 1 Poole V. Gist., + McCord, 141). 2 Ibid. 3 Clark V. Randall, 9 ^^'is. 135. * Rice V. Wilkins, 21 Jle. 558. n Savory v. Chapman, 8 Dowl. (556 ;. Jackson v. Bartlett, 8 Johns. 361; Kellogg V. Gilbert, 10 Johns. 220; 5 Peters, 113; Gullette. Lewis, 3 Stewt. 23; Carter i>. Taleott, 10 Vt. 471; Kirk r. Glover, 5 Stewt. & P. 34; Tankersly v. Anderson, 4 Desaus. 45; Simonton v. Barrel], 21 AVend. 362; Lewis -,. Gamage, 1 Pick. 347; "Wilson i;. Wadleigh, 36 Me. 496; 32 Me. 110; Derwort v. Loomer, 21 Conn. 245: Kent c. Rioards, 3 Md. CIj. 392; Stackhouse r. O'Hara, 14 Pa. 88; "Walker .- . Scott, 13 Ark. 644. 6 Commisioners v. Rose, 1 Desaus. 469; Treasurer «. McDowell, 1 Hill. (S. C.) 184; Nolan v. f ackson, Hi 111. 272: McCarver «. Nealy, 1 Greene, 360; Wright «. ?j>Daily, 2() Tex. 730; Gullet r. Lewis, 3 Stewt. 23; Cost c. Genetle, 1 Port. 212; Craig V. Ely, 5 Stewt. & P. .34; Givens v. Briscoe, 3 J. J. Marsh. 534; Perkins v. Grant, 2 La. An. 328; Phelps v. Preston, 9 Id. 488; Campbell ,■. Bailey, 19 Ibid. 172; Kent c. Ricards, 3 Md. Ch. 392; Keller i>. Scott, 10 Miss. (2 Smed. & M.) 81; Garvin .. Lowry, 15 Mi.ss. (7 Smed. & M.) 24; Wilkinson c. Holloway, 7 Leigh, 277. An attorney at law, in virtue of liis general powers as such, has no authority to receive depreciated bank paper in payment of a debt placed in his hands for collection; and if lie collects in such funds, his client is not bound to accept it. (West 0. Ball, 12 Ala. :i40; Chapman v. Cowles, 41 Ala. 103; Davis v. Lee, 20 La. An. 248; Trumbull v. Nicholson, 27 111. 149.) ' Livingston o. Ratcliff, Barb. 201. " (Hvens v. Briscoe, 3 J. .T. Marsh. 532; Varnumt). Bellamy, 4 McLean, 87. § 219 AUTHORITY AND POWEKS. 381 retraxit,^ nor to act for the legal representatives of his deceased client,^ nor to release a witness,^ nor a party in interest.^ It appears to be not within the ordinary business of a solic- itor to receive purchase-money belonging to his client, or money due to him on mortgage ; nor to receive money from him for the purpose of investment generally, and one partner is not lia- ble for the misapplication of money so received by another with- out his privity.^ One of two attorneys in partnership has no implied authority to bind his partner by a note or bill in the name of the firm, though given for their debt, as for money handed to the firm by a client to be laid out on mortgage ; nor to sign an undertaking in the name of the firm, for the payment of the amount of debt and costs of plaintiff in an action, in order to procure the dis- charge of the defendant in that action from custody ; '' nor is one partner liable in general for the transactions of the other with third parties without his knowledge, and outside of the partnership business^ But an attorney is civilly responsible for the fraudulent representation of his partner, as to the investment ^of moneys intrusted to the firm.^ The attorney has power to waive technical advantages,^ and to confess judgment.^" But a general retainer will not author- ize the attorney to release the interest of witnesses," to enter a 1 Lambert v. Sandford, 3 Blackf . 137. 2 Wood V. Hopkins, 2 Pen. (N. J.) 889; Campbell v. Kincaid, 3 Mon. 566. 3 Marshall v. Nagel, 1 Bailey, 308; Browne v. Hyde, 6 Barb. .392. * Succession of Weigel, 18 La. An. 49. 5 Bourdillon v. Roclie, 27 L. J. Ch. 681. See Viney r. Chaplin, 2 DeGex. & J. ■J68; i Jur. N. S. 619; 27 L. J. Ch. 434. 6 Henley w. Bainbridge, 3 Q. B. .316; 2 Gale & D. 483; 11 Law J. Q. B. 293; Hasleham v. Young, 8 .Tur. 338; Dav. & M. 700; 5 Q. B. 833; 13 Law J. Q. B. 205. But see Harman «. Johnson, (infra). ' Simms v. Brutton, 5 Ex. 802; 20 Law J. Ex. 41 ; Harnian i-. .Johnson, 17 ,Jur. 1099; 2 El. & B. 61; 3 Car. & K. 272; 22 Law .r. Q. B. 297. 8 Blair v. Bromley, 16 Law J. Ch. 495. " Hanson v. Hoitt, 14 ]S". H. 56; Alton v. Gilmanton, 2 X. H. 520; Pierce w. Perkins, 2 Dev. 250; Hart r. Spalding, 1 Cal. 213. i» King V. Cartee, 1 Pa. 147; Gray v. Gray, 2. Roll. 63; Denton -.. Soyes, 6 Johns. 296; Alton v. Gilmanton, 2 N. H.293; Pike v. Emerson, 5 N. H. 293; Talbot «. McGee, 4 Mon. .377. See People v. Lamborn, 2 111. 1 Scam. 123. " Wharton on Agency, sec. 586; Munray v. House, 11 Johns. 464; Bast River Bank v Kennedy, 9 Bosw. 573, York Bank v. Appleton, 17 Me. 65; Bell o. Bank, 8 Ala. 590; Browne v. Hyde, 6 Barb. 392; Springer r. Whipple, 17 Me. 351; Mar- shall V. Nagle, 1 Bail. 308; Shores c. Caswell, 13 Jlet. 413. 382 AUTHORITY AND POWERS. § 219 retraxit when it is a final bar,^ to assign the suit to a third party ,^ to release a garnishee from attachment,^ to release indorsers on a note,* to admit in such a way as to bind his client, erroneous positions of law,^ nor to stipulate not to appeal, nor to move for a new trial.^ A general power to defend a cause will not authorize the at^ torney to execute an appeal bond in the client's nameJ The attorney has generally, by virtue of his retainer, authority to do only those acts, in or out of court, necessary or incidental to the prosecution and management of the suit, and which affect the remedy only, and not the cause of action.* But an attorney has no power, virtute officii, to purchase for -his client, at a judi- cial sale, land sold under a mortgage held by the client, and the burden of proving that he had authority rests upon him.* At- torneys cannot waive substantial rights of the client without the latter's consent.^" A client is not bound by a contract entered into on his behalf by the attorney, without authority conferred, or subsequent rati- fication by the former." A stipulation by the attorney not to appeal or seek a new trial will not bind his client.^^ And a waiver of trial by jury in criminal cases is not binding on the defendant, if made without consulting him, even though he was present in court. '^ An attorney who receives a note for collec- tion cannot, without special instructions, make any agreement which will bind his principal, by which an indorser can be re- leased from his liability .1* A general authority to appear will 1 Lambert v. Sandford, 2 Blackf. 137. 2 Weathers v. Eoe, i Dana, 474; Head v. Gervais, Walk. Ch, 431; Mayer!'. Bleaae, 4 S. C. 10. 8 Quarles v. Porter, 12 Mo. 76. ■• Varnum v. Bellamy, 4 McLean, 87. 6 Mitchell V. Gotten, 3 Fla. 136. 6 People V. Mayor, 11 Abb. Pr. 66. 7 Halbrook's Case, 5 Cowen, 35; Clark v. Courser, 29 N. H. 170. 8 ^yieland v. AVhite, 109 Mass. 392; Rice v. Wilkins, 21 Me. 558; Pierce v. Strick- land,^^ Story, 292; Moulton v. Bowker, 115 Mass. 36. s Savery v. Sypher, 6 Wall. 157. 1" How V. Lawrence, 2 N". J. 99. 11 Ireland v. Todd, 36 Me. 149. 12 People V. Mayor, 11 Abb. 66. 13 Brown v. State, 16 Ind. 490. See Cancemi v. The People, 18 N. Y. 128. " Barnum u. Bellamy, 4 McLean, 87. § 219 AUTHORITY AND POWERS. 383 not authorize the attorney to execute an appeal bond- in the name of the client,^ or to purchase land sold under an execution issued in the cause for the benefit of and as trustee for his client ; ^ or to enter into an agreement by which, land is to be taken in- stead of money ;^ or to release the surety of his client's debtor;* or to compromise the debt ; '' though a compromise acquiesced in for years may bind the client ; ^ or to enter into private and executory contracts ; " or purchase on his own account, or as agent for third parties, without the consent and against the in- terest of his client, and leaving the client's debt unsatisfied.^ An attorney is not authorized to assign a demand to a third person so as to bind the client, and if he do assign it and the as- signee receive the money, assumpsit for money had and received lies in favor of the client against the assignee ; ^ nor has an at- torney power to sell his client's judgment, and his attempted sale of it will only bind the client when the act is ratified or adopted by receipt of the purchase-money, or otherwise. ^^ It was at one time doubted whether the attorney could not discharge the debt without satisfaction ; ^^ but the English and American decisions are now to the effect that his j)ower does not extend that far.^^ Some cases hold, however, that an attor- ney may authorize a sheriff to depart from the regular and ordi- nary course of his duty in collecting the judgment, as in giving time to pay a portion of the judgment, or taking a note for a portion on payment of the balance. ^^ I Ex parte Holbrook, 5 Cowen, .35. - BearcTsley v. Boot, 5 Cowen, 35. 3 Huston IK Mitchell, 14 Serg. & R. 307. * Givens v. Briscoe, 3 J. J. Marsh. 529. 5 Holker v. Parker, 7 Cranch, 436; Vail?). Conant, 15 Vt. 314; Dunbar ;;. Morris, SRolj. (La.) 278. 6 Mayer v. Foulkrod, 4 Wash. C. C. 511. ' Herbert v. Alexander, 2 Call. 498. 8 Hawley v. Cramer, 4. Cowen, 717, 741., 9 Penniman v. Patchiu, 5 Vt. 346; Card v. Walbridge, 18 Ohio, 411; Russell v. Drummond, 6 Ind. 21t>; White v. Hildreth, 13 N. H. 104; Child v. Powder VS^orks, 44 N. H. 354; Rowland v. Slate, 58 Pa. 196; Goodfellow v. Landis, 36 Mo. 168; Danley r. Crawl, 28 Ark. 95; Kelley v. Norris, 10 Ark. 18. i» Campbell's Appeal, 29 Pa. 401; Mayer v. Blease, 4 Rich. 10. II Orary v. Turner, 6 Johns. 53. 12 Savory v. Chapman, 11 Ad. & E, 829; 3 Perry & D. 604; 8 Dowl. O. S. 656; .Jackson v. Bartlett, 8 Johns. 361; Kellogg v. Gilbert, 10 Johns. 220; Simonton v. Barren ''I Wend. 362. See, however, Gorham v. Gale, 7 Cowen, 739. isGorhamc. Gale, 7 Cowen, 739; Walters «. Sykes, 22AVend. 566; Corning w. Southland. 3 Hill, 552. 384 AUTHORITY AND POWERS. § 219 The acts of an attorney, in directing the levy upon or taking of goods upon process, are in excess of his general powers, and in the absence of proof of special authority, do not subject the client to liability.^ An attorney employed to collect a debt has no authority to release the sureties upon his client's claim.^ He is not authorized to receive in payment anything but the full amount of money due,^ nor discharge a defendant from imprison- ment,* nor release a valid and proper lien in favor of his client and upon real estate,^ nor release sureties to an undertaking on appeal,^ nor release an indorserJ Neither has the attorney power under his general authority to consent that money taken from his client on arrest shall be paid into the treasury as secu- rity for his client's appearance, or for any purpose,^ nor to bid for his client at an execution sale,^ nor to assign the claim or judgment of his client.^** An attorney not having special author- ity to assign the judgment obtained by him in the name of his client to one of several judgment debtors, or to a third party for the benefit, of one of the judgment debtors, and having under- taken to do so, and receiving for such assignment the amount of the judgment, it was held that the assignment was a nullity ; but the reception of the amount of the judgment by the attor- ney, even if he did not pay it over to his client, is a payment of the judgment, and an execution cannot afterward issue to enforce the collection' of the judgment in favor of the client. His only remedy is against the attorney. ^^ Welsh V. Cocliran, 63 N". Y. 181; Averill o. Williams, i Denio, 295. « Savings Institution v. Cliinn's Admr., 7 Bush, 539. An English solicitor has no implied authority to pledge his client's credit to his counsel by an express promise to pay his fees, whether they relate to litiga- tion or not, so as to enable the counsel to sue the client for them. (Mostyn r. Mostyn, 5 Law R. Ch, Appeals, 4."i7,' approving Kenedy p. Brown, 13 Com. B. N. S. 677.) 8 Maddux v. Bevan, 39 Md. 485; Lewis c. Woodruff, 15 How. Pr. 539; People i'. Mayor, 11 Abb. Pr. 74. * Jackson v. Bartlett, 8 Johns. 361; Kellogg b. Gilbert, 10 Johns. 220; Simon- ton )). Barren, 21 WenA. 362; 11 Abb. Pr. 75. 5 Banks r. Robb, 4 Brewst. 106. 1 Mees. & W. 168. See generally, Colledge v. Horn, 3 Bing. 119; S. C. 10 Moore 431; Taylor's Evidence, sec. 709; Haller v. Worman, 2 Fost. & F. 165; E. v Coyle, 7 Cox C. C. 74; Swinfen v. Swinfen, 25 Law J. Com. P. 303; 26 Ibid. 97; 1 Com. B. N. S. 364; 27 Law J. Ch. 35; S. C. 24 Beav. 549; affirmed, 2 DeGex & J. 38; 27 Law J. Ch. 491; Chambers v. Mason, 5 Com. B. N. S. 59; Swinfen v. Chelmsford, 5 Hurl. & N. 890; Priestwick v. Foley, 34 Law J. Com. P. 189; 18 Com. B. N. S. 806; Strauss v. Francis. Law R. 1 Q. B. 379; S. C. 7 B. & S. 365; "Wharton on Agency, sec. 589. 394 AUTHORITY AND POWERS. §§ 226-8 sions cannot be received unless he is shown to be an attorney aliunde. The employment must be proved to include the par- ticular suit as to which admission is made.^ But the attorney may be a witness to prove his employment and authority. § 226. Admissions of clerks. — Admissions made by an attorney's clerk, in the performance of his ordinary office duties, are treated as tantamount to the admissions of the attorney himself.^ But the clerk should be the managing clerk. § 227. Recalling admissions before judgment. — As a question of law, errors of counsel cannot prejudice the client, if such error is recalled before judgment. So far as concerns er- rors of fact, perhaps the statements of counsel, when made in the client's presence and as his representative, may be treated as if made by the client himself; but the client is entitled to recall the admission at any time before judgment entered, if it should appear that the error is not traceable to any wrongful intent of his own, and that the opposite party is not prejudiced thereby. But it is otherwise when, in consequence of the attor- ney's admissions, the position of the opposite party has been altered, so that it would be detrimental to the latter for the ad- mission to be revoked.^ § 228. Attorney's power to compromise. — In England, the decisions upon the subject of the power of counsel to compromise are not uniform. Pollock, C. B., said in Swinfen v. Chelmsford, (2L. T.N. S. 406) "that although counsel has com- plete authority over the suit, the mode of conducting it, and all that is incident to it, such as withdrawing the record, withdraw- ing a juror, calling no witnesses, * * and other matters which properly belong to the suit, and the management and con- duct of the trial, he has not, by virtue of his retainer in the suit, 1 Wharton on Evidence, sec. 1187; Burghart v. Augerstein, 6 Car. & P. 645; Pope V. Andrews, 9 Ibid. 6t:4; Wagstafe v. Wilson, 4 Barn. & Adol. 339; Wliarton on Agency, sec. 582; Moffltt u. Witlierspoon, 10 Ired. 185. 2 Wliarton on Evidence, sec. 1188; Griffith .•. Williams, 1 T. R. 710; Truelove «. Burton, 9 Moore, 04; Taylor (;. Williams, 2 Barn. & Adol. 845; Standage v. Oreigh- ton, 5 Oar. & P. 406; Power v. Kent, 1 Cowen, 211 ; Birkbeck v. Stafford. 14 Abb. 285; S. C. 23 How. Pr. 236; Meyer c. Setton, 2 Stark. 274. 3 Mitchell V. Cotton, ;i Pla. 130; Whiirton on Evidence, sec. 1189. § 228 AUTHORITY AND POWERS. 395 any power over matters which are collateral to it." ^ Yet, in an- other English case, Cresswell, J., said: "If counsel, duly in- structed, take upon himself to consent to a compromise, which he, in the exercise of a sound discretion, judges to be for the in- terest of his client, the court will not inquire into the existence or the extent of his authority. I am extremely happy to find that the decisions abundantly bear us out." But it is also de- clared that the compromise should be bona fide, prudent, and beneficial to the client.^ The general rule in England, as thus stated, is sustained by numerous authorities.^ It is also said that the rule only extends to cases where he acts iona fide, and with reasonable care and skill, and for the best interests of the client, and the settlement is not made in defiance of the client's instructions,* and this even after judg- ment, if the attorney be retained to obtain satisfaction of judg- ment,^ but not after judgment unless he is further retained in the action ; ^ and if a client be present during a compromise it will not be set aside on his allegation that he did not understand what was going on.''' But if the attorney is expressly instructed not to compromise a suit, a settlement by him is void, and not binding upon the client, even though reasonable and honafide and for the benefit of the latter.^ If the attorney is authorized to compromise only on condition of securing a certain sum, as com- promises for a larger one, this may be evidence of an agree- ment on his part to accept the surplus, in satisfaction of costs. ^ 1 Swinfen v. Swinfen, 18 Com. B. 485; S. 0. 1 Com. B. K S. S64; S. C. 24 Beav. 54S); S. C. De Gex & J. 381; Swinfen v. Lord Chelmsford, 5 Hurl. & X. 890. See Wharton on Agency, sees. 590, 591, 592. 2 Chown )'. Parrott, 14 Com. B. N. S. 74. See Fray u. Voules, 1 El. & El. 839. 3 See especially Butler v. Knight, Law R. 2 Ex. 109; Prestwicli n. Poley, 18 Com. B. K. S. 80(i; Strauss v. Francis, Law K. 1 Q. B. ,379; Story on Contracts, 8th ed. sec. 24, note; Thomas v. Harris, 27 L. T. N. S. 353; Ex parte Wanham, 21 Week. R. 104; Brady «. Curran, 2 Irish R. Com. Law, 314; Berry c. Mullen, Ir. R. 5 Eq'. 368; Chambers r. Mason, 5 Com. B. N. S. 59. ■1 Chown V. Parrott, 14 Com. B. N. S. 74; Priestwick c. Poley, 18 Ibid. 80!i; Strauss v. Francis, L. B. 7 Q. B. 379; Thomas u. Howes, 2 Cromp. & M. 519; Brady V. Curran, L R. 2 C. L. 314; Berry v. Mullen, Ibid. 5 Bq. 368. s Butler v. Knight, Law R. 2 Ex. 109. ^ Egan «. Roouey, 38 How. Pr. 121 ; Lewis v. Woodruff, 15 Ibid. 539. But see Bank v. Bisley, 4 Denio. 480. ' Chambers v. Mason, 5 Com. B. N. S. 59. 8 Pray v. Voules, 1 Bl. & E. 839. 9 Churchyard v. Watkins, 27 Law J. Ex. 13. In New York and Maryland an attorney as such cannot settle a suit and give a 396 AUTHORITY AND POWERS. §228 Chown V. Parrott, 14 Com. B. N. S. 74, was an action against attorneys for entering into a compromise by which judgment was rendered against the plaintiffs in an action in whioh they were defendants. It appeared that the attorneys had exercised due care and skill, and acted in a manner which they believed advantageous and beneficial to the plaintiffs ; but they had no express authority from their clients to compromise the action. It was held the attorneys were not liable. Erie, C. J., said the rule of law was well established, that the general authority to conduct a cause gives the attorney authority to compromise. The reason why the compromise is held to be binding upon the client is, because the attorney is his general agent for that pur- pose. "I think," said he, "that is established by Fray v. Voules, 1 El. & E. 839 ; where it was held that an attorney who makes a compromise in defiance of the express directions of his client not to do so, is guilty of a breach of dikty. The action lay against the attorney there because he was prohibited, which would seem to imply that if he had not been expressly prohibited from compromising, the compromise would have been a lawful act on his part." And in Priestwick v. Poley, 18 Com. B. N. S. 806, Byles, J., said that no authority had been cited to show that an attorney, who has the legal management of the cause, has not power in the bona fide exercise of reasonable care and skill to compromise the action in any manner he may find to be in the interest of the client, and the compromise was upheld.^ The attorney has power to make bona fide compromises of his client's case, with the knowledge of the client, and in the absence of any dissent on his part.^ But if the attorney has express di- rections from the client not to enter into a compromise, it has, on the other hand, been held that he has no power to do so, even though it be reasonable and bona fide, and for the benefit of the client ; and if he does so, he is liable to an action for damages, though the damage actually sustained be nominal ; ^ nor is it release concluding his client in relation to the subject in litigation, (Barrett v. Third Avenue, etc. 45 N. Y. 628; 8 Abb. Pr. N. S. 205; Shaw v. Kidder, 2 How. Pr. 244; Maddux v. Bevan, 39 Md. 485.) 1 See, also, to same effect Thomas v. Harris, 27 L. J. N. S. Ex. 353; In re Wood; Ex parte Wenham, 21 Week. E. 104; Brady v. Curran, Irish Rep. 2 C. L. 314; Berry tJ. Mullen, Irish Rep. 5 Eq. 368; Chambers o. Mason, 5 Com. B. N. S. 5«. 2 Chambers v. Mason, 5 Com. B. N. S. 59; 5 Jur. N. S. 148; 28 L. J. C. P. 10, s Fray?). Voules, 1 El. & E. 839; 5 Jur. N. S. 1253; 28 Law J. Q. B. 232; 7 Week. R. 446; 33 L. T. 133. § 228 AUTHORITY AND POWERS. 397 any defense to such an action that the compromise was entered into by the advice of counsel employed by the attorney, under his retainer, for the conduct of the cause. At all events. It seems to be agreed that such power of com- promise is to be confined to the settlement of the particular suit, and does not include matters collateral. ^ Where counsel for de- fendant in an action alleged to have been prosecuted maliciously, agreed, without any authority from their client, that the dismis- sal of said action should be a bar to an action for malicious prose- cution, it was held that such agreement was a nullity. The court said : " We suppose it will hardly be contended that when counsel are employed to defend in one action they can barter away their client's rights in another." ^ It is laid down in American cases that an attorney has no au- thority arising from his employment in that capacity, no im- plied power, to compromise his client's claim, or to settle a suit and conclude the client, without the latter's consent.^ But a compromise acquiesced In for years by the principal will bind him forever.* And the principle has been so far modified, that an agreement or compromise of a suit by an attorney, even though made without special authority, has not been Interfered with unless it was so unreasonable as to warrant a belief that the attorney was imposed upon, or did not exercise his judgment fairly.^ There are numerous cases in the United States where 1 Strauss v. Francis, Law R. 1 Q. B. 379; Ex parte Wenham, 21 Week. E. 104; Dodd V. Dodd, 9 Pa. 315;. Davidson v. Rozier, 23 Mo. 387; Holker v. Parter, 7 Cranch, 436. 2 Marbourg v. Smith, 11 Kan. 554; Holker v. Parker. 7 Cranch, 436; cases cited, supra. In a Maryland case it was held that an attorney at law has no power as such to compromise claims of his client by taking a bond, or anything except money, in satisfaction of them, or by receiving a less sum, or any security for a less sum, than is due on them, and such a compromise, if not expressly author- ized, will not be binding on the client unless he has, with full knowledge, rati- fied it. (Maddux r. Bevan, 39 Md. 485.) 3 Maye v. Cogdell, 69 N. C. 93; Stokeley v. Robinson, 34 Pa. 318; Abbie u. Rood. 6 'McLean, 106; Holker a. Parker, 7 Cranch, 436; Spears ,:. Ledergerber, 56 Mo. 465; Adams u. Roller, 35 Tex. 711; Shaw w. Kidder, 2 How. 244; Barrett «. Third Avenue R. R. Co. 45 N. Y. 628, 635; Lewis v. Gamage, 1 Pick. 347; Derwort V. Loomer, 21 Conn. 245; Davidson v. Rozier, 23 Mo. 387; Pilby v. Miller, 25 Pa. 264; Vail v. Jackson, 13 Vt. 314; Walden v. Bolton, 55 Mo. 405; Ambrose v. McDonald, Sup. Ct. of Cal. Apl. 20, 1878, unreported. * Mayer v. Foulkrod, 4 AVa.sh. C. C. 511. 6 Potter V. Parsons, 14 Iowa, 286; Holker ». Parker, 7 Cranch, 436; Christie v. Sawyer, 44 N. H. 298. 398 AUTHORITY AND POAVERS. § 228 the attorney's right to compromise has been denied in terms more or less absolute.^ There are, however, many cases to the contrary. In a recent case in California,^ the power is some- what extensively discussed, and the court say: "That in the United States the rule, as settled by an almost uniform current of authorities, is that an attorney, by virtue merely of his re- tainer as such, and without express authority from his client, has not the power to bind the client by the compromise of a pending action." But the court is clearly in error as to there being any " uniform current of authorities " to that effect. There are numerous authorities to the contrary.^ In Holmes v. Rogers,* an action was brought to set aside a decree entered by the consent of the plaintiff's attorney, in pur- suance of a compromise agreed upon by the attorney without the knowledge or consent of his client. The court ujjheld the decree on the ground that in the absence of fraud or mistake, a party to an action is bound by a judgment entered by the consent of his attorney, under the circumstances stated, and par- ticularly if the attorney be not insolvent. The attorney in that case, without the knowledge or consent of his client, comprom- ised the cause of action, and consented to the entry of a decree in accordance with the terms of the compromise.^ We think, however, that the weight of authority in the United States is against the general power of the attorney to bind his client by a compromise. In Holker v. Parker, (7 Cranch, 436) the client was ignorant of the compromise until after the entry of the judgment, and had not assented to it. The 1 Davidson v. Eozier, 23 Mo: 387; Holker v. Parker, 7 Cranch, 43G, 452; Dodd V. Dodds, 9 Penn. 315; Derwort ». Loomer, 21 Conn. 245; Vail v. Jackson, 13 Yt. 314; Nolan v. Jackson, 16 111. 272; Doub v. Barnes, 1 Md. Ch. 127; Maddux v. Sevan, 39 Md. 485; Smith t. Dixon, 3 Met. 438; Smock ;•. Dude, 5 Rand. 639; Marbourg v. Smith, 11 Kans. 562. 2 Preston v. Hill, 50 Gal. 43. 8 See Wieland v. "White, 109 Mass. 392; Peru Steel Co. v. Wliipple, 109 Mass. 464; Potter v. Parsons, 14 Iowa, 286; Christie v. Sawyer, 44 N. H. 298; fteinbold r. Alberti, 1 Binn. 469; Holmes v. Rogers, 13 Cal. 191. 4 13 Cal. 191. ^ Aji attorney employed to prosecute a suit for land has power to compromise the claim again.st the disseizor fox mesne profits during the pendency of the suit,if the attorney deems it best for the interest of his client to avoid all the chances of litigation, and secure the speedy and successful termination of the principal suit in the most economical manner. (Boruey v. Morrill, 57 Me. 368. See Marco V. Low, 55 Me. 549.) § 228 AUTHORITY AND POWERS. 399 court, Marshall, C. J., rendering the opinion, held that the client was not bound by the compromise and the judgment in pursuance of it, on the ground that the plaintiif's attorney had exceeded his authority. In the case in California, already cited, the client protested against the compromise before it was made, and against the entry of the judgment, in the presence of the court and of the opposing counsel. The court held that there was not only a want of authority in the attorney to make the compromise, but an active opposition to it by the client, of which the court and the opposing counsel were advised before the en- try of judgment, and the attorney had no authority to make it.^ That an attorney cannot, by virtue of his retainer, compel his client to submit to a compromise against his protest, made at the time and renewed in open court in presence of his adversary, be- fore the entry of the judgment. Whatever presumptions the court or the adverse party might ordinarily be authorized to make, as to the authority of an attorney who proposes to com- promise his client's cause of action, all such presumptions must cease when the client, before the transaction is consummated, notifies the court and his adversary, in a formal manner, that his attorney acted without authority, and that he repudiates the bargain. This doctrine under the circumstances, it would seem, can but meet with approval, and should, we think, be adopted.^ If an expression of opinion be deemed desirable, or will not be considered presumptuous, where so many distinguished au- thorities have differed, we should be decidedly in favor of the doctrine which denies in all cases the power of the attorney to compromise his client's cause without the latter's special author- ity, or express consent, or such silent acquiescence with full knowledge as amounts to a ratification. We should especially deny the attorney's power to compromise the cause in the face of any dissent or reluctance on the part of the client, however much to the latter's pecuniary interest the attorney may con- 1 Preston v. Hill, 50 Cal. 43; S. C. 19 Am. K. 647. 2 Preston v. Hill, 50 Cal. 43. See Swinfen v. Swinfen, 24 Beav. 549. See also, to the same effect, Smith's Heirsw. Dixon, 3 Met. (Ky.) 438; Hudson v. Mitchell, 14 Serg. & K. 307; Stackhouse v. O'Hara, 14 Pa. 88: Stokely v. Robinson, 34 Pa. 316; Abbe v. Rood, 6 McLean, 106; Derwent v. Loomer, 21 Conn. 245; Davidson r. Rosier, 23 Mo. 387; Fitch v. Scott, 3 How. (Miss.) 317. But acquiescence rati- fies the compromise. (Mayer v. Foulkrod, 4 "Wash. C. 0. 511.) 400 AUTHORITY AND POWERS. § 229 sider the settlement to be. "We admit the very extensive au- thority the attorney has in the control and management of the- cause, and in this chapter have had occasion to dwell upon it ; but that control is given him for the accomplishment of a pur- pose, and that purpose is the procurement of his client's claim, whatever it is, and the whole of it, and not a partial success or a mutilated remedy. If the client, after being fully advised in the premises, (and if the attorney thinks the compromise expe- dient, he should so advise) chooses to hazard the chances of an entire victory or a total defeat, we consider it a matter proper to be determined by him, and not his 'counsel. How the desired end is to be reached, is a matter for the most part for the coun- sel to determine. We have already seen that on the road to judgment the attorney has almost absolute management and control, which the client is almost powerless to interfere with ; but we do not consider that all this confers upon the attorney any general authority to stop permanently at the half-way house of a compromise, or partial settlement. Whichever view, how- ever, the reader may take of the question, he will not find it un- supported by authority ; and we will only hazard one more re- mark, and that is, in view of the condition of the law, as shown by the authorities, it is scarcely prudent for the attorney to make a compromise which has not met in some way with the approbation of the client, as the attorney might, in any locality where the question is not clearly settled, be the victim of a de- cision adverse to the power, and be placed in the unpleasant attitude of a defendant in an action for damages at the instance of the client. § 229. Negligent compromise. — An attorney at all events is liable to his client for a negligent compromise, and for any damages the client may have sustained. The test is : Did the attorney, in making the settlement, act as good and diligent busi- ness men of his class are accustomed to act? If so, he may possibly be protected, although the compromise be set aside. If he did not show such care and diligence, then he is liable for the loss.-' 1 Wharton on Negligence, aeu. 749; Chambers k. Mason, 5 Com. B. K. S. 350. §§ 230-2 AUTHOEITT AND POWERS. 401 § 230. Notice of ^vant of authority to compromise. — The compromise is not binding on the client if the opposite party have notice of the attorney's want of authority, or if the terms of the compromise are such as to put the opposing party on inquiry. Had the attorney apparent authority to compro- mise ? If so, then his client may be bound, unless the compromise was of so unfair a character as to imply fraud. Was the com- promise so flagrantly unfair to the client as to make it impossible that the latter would have agreed to it? If so, the compromise is not binding.! § 231. No compromise after judgment. — The power, whenever it exists, is based solely on the uncertainties of litiga- tion. After the matter is made certain by judgment, the power to release or compromise is ended. The same remark applies to other liens ; but perhaps in order to collect part of a very des- perate judgment the attorney might be justified, even without authority, in releasing the remainder of the lien ; but such a course is a dangerous one, and special authority should always be obtained if possible.^ § 232. Authority to demand and receive payment. — An attorney has authority, by virtue of his general retainer, to demand and receive payment of his client's money,^ and payment to the attorney is payment to the client.* But no rule is better established than that, without express authorization, the attorney cannot receive anything but money in payment of a debt in- trusted to him for collection.^ An attorney employed to collect 1 Preston v. Hill, 50 Cal. 43; Wharton on Agency, sec. 594; Holker v. Parker, 7 Cranch, 436 ; Stackhouse v. O'Hara, 14 Pa. 88 ; Filley v. Miller, 25 Pa. 264; Pot- ter V. Parsons, 14 Iowa, 286; Brady v. Curran, 2 I. E. C. L. 314; Berry v. Mullen, 5 I. E. Eep. 5; Eq. 368. 2 "Wharton on Agency, sec. 595; Jones v. Eansom, 3 Ind. 327; Jenkins v. Gil- lespie, 18 Miss. 31; Pendexter v. Vernon, 9 Humph. 84; "Wilson v. Jennings, 3 Ohio St. 528. But see Monson v. Hawley, 30 Conn. 51 ; Moulton v. Bowker, 115 Mass. 36. s Langdon v. Potter, 13 Mass. 319; Bryans v. Taylor, "Wright, 245; Puckman v. Allwood, 44 111. 183; Ducett v. Cunningham, 39 Me. 386; Megary v. Funtis, 5 Sand. 376. 1 Ely V. Harvey, 6 Bush, 620; Carroll Co. v. Cheatham, 48 Mo. 385. 6 Huston V. Mitchell, 14 Serg. & R. 307; "Wilkinson v. Holloway, 7 Leigh, 277; Moye V. Cogdell, 69 N. C. 93; "Wright v. Daily, 26 Tex. 730; Givens v. Briscoe, 3 A. & C— 26. 402 AUTHORITY AND POWEES. § 232 a debt has no authority to release the sureties upon his client's claim,^ or to receive other securities in payment of the demand,^ or to sell or transfer the claim,^ or to receive part of the debt and a security for the balance.* An attorney has no authority to receive a draft for money due, and if it proves w^brthless the client is not bound by his reception of it in lieu of money,^ nor can he receive his own nor another person's note in payment of a debt placed in his hands for collection.^ An attorney may, however, receive partial payments on a claim put in his hands for collection,'^ but he cannot bind his cli- ent by an agreement to set off his own debt in part payment of a debt due the client.^ While the attorney of record of the plaintiff, in an action for the recovery of money, has authority to receive the amount of a judgment recovered by his client, and to discharge it,^ still he has no authority to execute a satisfaction of judgment on behalf of his client without payment ; and even where the attorney holds the judgment by assignment, as secur- ity for debts due from the client, his satisfaction without pay- ment is good only for the amount of his interest.-"* The payment of a judgment or decree to the attorney who obtained it, before his authority is revoked and due notice of such revocation given to the defendant, is valid and binding on the plaintiff so far as the defendant is concerned. But it must be a payment of money, or if not, it must be accepted by the client in lieu of money, or the attorney must have special au- thority to receive it. Confederate States' Treasury notes were not such money as an attorney could receive in payment of his Marsh, J. J. 534; Kent v. Eicards, 3 Md. Ch. 392; Havper v. Harvey, i W. Ta. 539; Trumbnll v. Nicholson, 27 111. 149. 1 Savings Inst. «. Chiner, 7 Bush, 539. 2 Jeter v. Haviland, 24 Ga. 252; Walker v. Scott, 13 Ark. 644. 8 Rowland)). Stone, 58 Pa. 196; Noouonii. Gray, 1 Bail. 437; Cardw. Walbridge, •» Collet V. Challis, 11 L, T. 245; 2 Ex. 484. 18 Ohio, 411; Penniman v. Patcheu, 5 Vt. 346. 5 Drain v. Doggett, 41 Iowa, 682; Bassett v. HilLs, Ibid. 682; Greydon c. Patter- son, 13 Iowa, 256. 6 Cooke V. Bloodgood, 7 Ala. N. S. 683. ' Pickett V. Bates, 3 La. An. 627. 8 Child V. D wight, 1 Dev. & B. 171; Chambers v. Miller, 7 Watts, 63. 8 Lewis V. Gamage, 1 Pick. 347 ; Brackett v. Norton, 4 Conn. 517; Canterberry V. Commonwealth, 1 Dana, 416; Wilson v. Stokes, 4 Muuf. 455. i" Beers v. Hendrickson, 45 N. Y. 665. § 283 AUTHORITY AND POWERS. 403 elient's debt without special authority from the client.-' So, an attorney who has a claim for collection cannot without special authority take a bond instead of money as a satisfaction for a debt. And an attorney, who usually had taken judgments for the former guardian, and for that reason, after the writ had been executed and before it had been returned, instructed the sheriff to receive Confederate notes and other currency, in pay- ment of the amount specified on its face, was held not author- ized to do so.^ But it has been inferred from facts and circum- stances shown in evidence, that an attorney, during the civil war, was authorized by his client to receive payment on a claim in his hands in Confederate money, all the parties residing at the time within the Confederate lines. ^ The attorney may receive payment of money on a claim left to be collected.* Payment to the attorney is usually considered payment to the client.^ But an attorney in whose hands a claim is placed merely for collection, it not appearing that he is employed generally to act for the party, cannot, without special authority, delegate his power to collect to a third person.^ It follows from the general authority of the attorney to receive payment, that until the adverse party has notice of revocation of the attorney's authority, he will, except in those cases where special authority is necessary, be entitled to the credit of all payments made to the attorney.'' § 233. Power to submit a cause to arbitration. — An agreement to refer a cause, or to arbitrate, comes within the scope of the attorney's general authority.^ So where an attor- 1 Harper n. Harvey, i W. Va. 539; Yoakum v. Tilden, 3 Ibid. 167; Smock t). Dade, 5 Rand. 639; Drain u. Doggett, 41 Iowa, 082; Sassett v. Hills, Ibid. 682; Graydon v. Patterson, 13 Iowa, 2S6. 2 Aspaugh V. Jones, 64 N. C. 29. 3 Ellis V. Heptinstall, 8 W. Va. 388. Payment in Confederate money, see Johnson v. Gibbons, 27 Gratt. 632; where creditor, having notice from the attor- neys, and waiting twelve years without dissent, was concluded by the payment. 4 Carroll Co. v. Cheatham, 48 Mo. 385. «Ely V. Harvey, 6 Bush, 620. 6 Danley v. Crawe, 28 Ark. 95; Kelly v. Norris, 10 Ibid. 18. ^Harper?). Harvey, 4 W. Va.539; Yoakum v. Tilden, 3 Ibid. 167; AVilkinson •J. HoUoway, T Leigh, 27T; Baltimore Co. v. Eitzpatrick, 36 Md. 624. 8 Talbot V. McGee, 4 Mon. 377; Inhabitants of Buckland v. Inhabitants, etc., 16 Mass. 396; Scarborough v. Reynolds, 12 Ala. 252; Stokely v. Robinson, U Pa 404 AUTHORITT AND POWERS. § 233 ney of record, in an action which had been sent to a referee by order of court, signed an agreement in writing that the report of the referee should be final, the client was held bound.-' And where a court informed counsel that it was for the interest of parties that the cause be referred, and unless the party con- sented to a reference certain motions would be denied, the attor- ney was held authorized to consent to the reference, although the action was one of tort ; and this on the ground that counsel may make such stipulations and agreements in reference to the proceedings in which he is retained as counsel usually make, and such as the court may require to be made and entered into as conditions of granting relief, and these agreements and stipula- tions bind the client, especially when entered into in open court ; but it seems that the order of reference may be vacated at the discretion of the judge.^ The general doctrine that an attorney may submit a cause to arbitration is limited to cases where there is a suit pending which he has been employed to manage,^ and the agreement to arbitrate should be precedent to the award, and be made in the cause in a formal manner.* A reference of an action or controversy to arbitrators by an attorney, although without the knowledge or, special authority of his client, is binding upon the client, arbitration being one of the legal modes of trying disputed questions to which the cli- ent's cause may be submitted by the attorney under his general authority to prosecute or defend. The attorney's agreements about continuances, about evidence, the conduct of the trial, and the like, will generally bind the client. He cannot accept a draft in payment of a judgment debt, payable in future, without special authority from his client.^ In England, it has been held 315; Coleman v. Grubb, 23 Pa. 393; Holker v. Parker, 7 Cranch, 436; Abbe v. Eood, 6 McLean, 106; Brooks v. Durham, 55 N. H. 559; Alton v. Gilmanton, 2 Ibid. 520; Hanson v. Hoitt, 14 Ibid. 56; Spaulding's Appeal, 33 Ibid. 479; Pike v. Emerson, 5 Ibid, 393; Faviellw. Eastern Co. 2Ex.344; 6 Dowl. &L..54; White V. Davidson, 8 Md. 169, 1 Brooks V. Durham, supra. 2 Tiffany v. Lord, 40 How. Pr. 481. 3 Jenkins v. Gillespie, 10 Smedes & M. 31. See in Pennsylvania as to affecting title to real estate, Houston v. Mitchell, 14 Serg. & R. 307; Naglee v'. Ingersoll, 7 Pa. 185; Pearson v. Morrison, 2 Serg. & R. 20. * Stokeley v. Robinson, 34 Pa. 315; Holker v. Parker, 7 Cranch, 449; Wilson v. Young, 9 Barr. 101; Massey v. Thomas, 6 Binn. 333. » Morris v. Grier, 76 N. C. 410; Holker v. Parker, 7 Cranch, 436; Moye v. Cog- dell, 69 N. C. 93. § 234 AUTHORITY AND POWERS. 405 that the attorney has power to submit a case to arbitration, although the client desired it should not be done, the client's' remedy in such cases being an action against the attorney for damages.^ So he may modify the terms of submission when the client has agreed to refer, and may enlarge time for the arbitra- tors to make their award.^ An authority to prosecute or defend a suit implies a power to refer it by rule of court.^ The gen- eral rule is that he may submit the matter in dispute to arbitra- tion, because by the implied assent of his client, arising from his employment, he may do anything which the court may approve in the progress of the cause, when there is a suit pending.* It is said that an agreement by counsel to refer or arbitrate will be sustained against the client's dissent.^ § 234. Collateral matters. — An attorney cannot bind his client in collateral matters ; as, for instance, the attorney is not competent to bind his client by a sale of the land sued for ; ^ nor to purchase land for his client at a judicial sale under the client's execution ; "^ nor to control the business of even foreign clients in matters extra forensic ; ^ nor can the attorney receive any- thing but money in the payment of a debt, unless expressly au-- thorized.^ Hence a payment in depreciated bank paper does not bind the client.^" But permission to receive payment on / 1 Thomas v. Hews, 2 Cromp. & M. 327. 2 Rex V. Hill, 7 Price, 630. 3 Buckland v. Conway, 16 Mass. 396. * Jenkins v. Gillespie, 10 Smedes & M. 31. 6 Cabin V. Benn, 6 Binu. 99; Smith v. Bassard, 2 McCord, 406; Stokeley v. Rob- inson, 34 Pa. 315; Wader v. Powell, 31 Ga. 1. But see Markley v. Amos, 8 Rich. 468. 6 Corbin v. Mulligan, 1 Bush, 297. ' Beardsley t). Boot, 11 Johns. 464; Wharton on Agency, sec. 5S2. 8 Clark V. Kingsland, 9 Miss. 248. 9 Wharton on Agency, sec. 583; West v. Ball. 12 Ala. 340; Cost v. Genette, 1 Port. 212; Kent «. Ricards, 3 Md. Ch. 392; Wilkinson v. Holloway, 7 Leigh, 277; Wright V. Daley, 26 Tex. 730; Walker v. Scott, 13 Ark. 252; Lord v. Burbank, 18 Me. 178; Patten ii. Fulberton, 27 Me. 58; Child v. Dwight, 1 Dev. & B. Eq. 171; Treasurers v. McDowell, 1 Hill (S. C.) 184; Perkins v. Grauf, 2 La. An. 328; Phelps V. Preston, 9 La. An. 488; Campbell v. Baily, 19 La. An. 172; Garvin v. Lowry, 15 Miss. 24; Jeter v. Haviland, 24 Ga. 252; Huston v. Mitchell, 14 Serg. & B. 307. But a payment, part in cash and part in a short note, of a person of undoubted responsibility, was sustained in Livingston v. RadclifE,6 Barb. 201. i» West V. Ball, 12 Ala. 340; Chapman v. Cowles, 41 Ala. 103; Davis v. Lee, 20 La. An. 248; Trumble v. Nicholson, 27 111. 189. 406 AUTHORITY AND POWERS. §§ 235-6 stocks or goods may be inferred from acquiescence in this mode of payment of prior installments of the same debt.^ § 235. Authority to stipulate that cause of action shall continue. — ^In an action to recover damages, defendant's coun- sel, as a condition of a continuance, stipulated that in case of the death of the plaintiff, before final judgment, the alleged cause of action should survive, and any verdict or judgment be regarded as if rendered in plaintiff's lifetime ; and also that in case of such death, plaintiff's representatives might be substi- tuted for plaintiff. The court held that the stipulation contin- ued in force until final judgment, although meanwhile a verdict and judgment in plaintiff's favor had been set aside. The stip- ulation was one the attorney had power to make, and was bind- ing on the client, especially as the stipulation was made by the court a condition of granting the continuance. It belonged also to the attorney's general authority to conduct the cause.^ So, in an action in tort for an escape, the court, in putting off the trial of the cause on the application of defendant, on account of the absence of a material witness, required the defendant's coun- sel to stipulate, as a condition of granting the application, that the action should not abate if the defendant should die before the next term, it appearing that he was then afflicted with a mortal malady. The stipulation was held binding.^ If an attorney is employed in anticipation of a suit to be brought, when thus employed his client is bound by his stipu- lations in relation to it, to the same extent as if he stipulated after suit instituted. Especially after he has appeared, and the court, by rendering judgment, has recognized his right to appear, and the defendant, by paying a portion of the judgment, has recog- nized the same right.* § 236. Authority to agree to continuance. — An attorney has exclusive control of the conduct and management of a suit, and neither the party, nor his agent or attorney in fact, has au- 1 Patten v. Pullerton, 27 Me, 58; Baldwin v. Merrill, 8 Humpli. 132. 2 Cox «. Company, 63 N". Y. 414, reversing S. C. 4 Hun. 176 ; 6 Tliomp. & C. 405. See also Gaillard v. Smart, 6 Coweu, 385; Gorham v. Gale, 7 Cowen, 739; Corning V. Southland, 3 Hill, 552; Gainsford v. Grammar, 2 Camp. 9. 3 Ames V. Webbers, 10 Wend. 576; Anderson v. Rome, 54 N. Y. 335. See also Griffith v. Williams, 1 Cromp. & J. 47; Palmer v. Cohen, 2 Barn. & Adol. 966. * Hefferman v. Burt, 7 Iowa, 320. § 237 AUTHORITY AND POWERS. 407 thority to sign a stipulation for a continuance. But tbe attor- ney must be an attorney of the court ; and the mere fact that the name is printed on the complaint as " of counsel " will not affect the matter, the printed names not being signatures ; and when an attorney appears only as counsel in a case, he is not thereby authorized to sign a stipulation, as for a continuance, even if he be an attorney of the court. The conduct of a suit, except in a matter arising in the argument or hearing before the court, is exclusively under the control of the attorney of record. When a party does not choose to manage his cause personally, he can only do so by an attorney of the court. He cannot appoint an agent not an attorney of the court, and author- ize such agent to represent him in the suit. But when a party makes his choice, and selects an attorney of the court to conduct and manage his cause, the attorney stands in his place. Until such attorney is changed or discharged, he has the exclusive control of the conduct and management of the cause. He may not be able to give a release and discharge in the cause of action, but he has exclusive control of the remedy, and may continue or discontinue it. His client cannot control him in the due and orderly conduct of the suit, and cannot appoint or authorize an agent to do it.^ § 237. Notice to attorney — Notice to client. — Notice to the attorney, whether actual or implied, is considered notice to the client, and the latter is bound.^ But to charge the princi- pal with implied notice of facts, because they were known to his attorney, the attorney's knowledge must be acquired during the existence of his agency. But notice to an agent or counsel em- ployed by another person, in another business, at another time, will not be constructive notice to his principal or client employ- ing him afterward.^' Nor is the client bound if the notice is re- ceived in any independent prior transaction.* 1 Nightingale v. Company, 2 Sawy. 338; Gaillard«. Smart, 6 Cowp. 383; Kel- logg V. Gilbert, 10 Johns. 220; Anon. 1 Wend. 108. 2 Pepper v. George, 51 Ala. ISO; Worsley v. Scarborough, 3 Atfc. 392; Warrick V. Warrick, Ibid. 294; Le Neve v. Le Neve, Ibid. 650; Lowther v. Carlton, 2 Ibid. 242; Laeas h. Bank, 2 Stewt. 321; Terrall v. Bank, 12 Ala. 502; Wharton on Agency, sec. 584; Bierce v. Red Bluff Hotel Co., 31 Cal. .160; Allen v. McCalla, 25 Iowa, 464; Williams w. Tatnell, 29 111. 553; Havens. Snow, 14 Pick. 28; Sin- gleton V. Kent, 8 Ala. 691. See Campbell v. Benjamin, 69 111. 244 3 Ibid. i Hood V. Fahnestock, 8 Watts, 489; Spaight v. Cowne, 1 Hem. & M. 359. 408 AUTHORITr AND POWERS. § 237 Notices should be served on the attorney and not on the cli- ent, who is not supposed to know their effect.^ A notice does not bind if the attorney tells the opposite party that he will not communicate it to his client.^ The mere employment of a solic- itor to do a ministerial act does not bind the client by notice to the solicitor outside of such act.^ Offers made by the plaintiff's attorney in the hearing of a third person, to do an act relative to the defendant, which lay in the scope of his authority, are not admissible evidence to affect the plaintiff with such offer, but the rule is otherwise if the offer is made to the defendant.* A constructive notice to an attorney is sometimes equally bind- ing on the client as actual notice. An attorney in one case was agent for the grantor and grantee of an annuity, and subse- quently for the purchaser in selling the estate on which the an- nuity was charged. An actual notice to him of the incum- brance was held a constructive notice to the intended pur- chasers. Their being infants was held not to affect the ques- tion.^ The attorney of a judgment-creditor, while his authority to enforce the judgment continues, is the proper person on whom to serve notice of any proceeding in the same action to avoid the judgment.® ^ Warden v. Eden, 2 Johns. Cas. 121. 2 Sharpe v. Foy, 17 Week. E. 65. a Wyllie v. Pollen, 32 L. J. Ch. 782. * Wilson V. Turner, 1 Taunt. 398. See Truelove v. Burton, 9 Moore, 64; Ash- bourne V. Price, 1 Dowl. & R. N. P. C. 48. 5 Toulmin v. Steere, 3 Mer. 228. 6 Sheldon v. Risedorph, 23 Minn. 518. Notice to solicitor , notice to client, as applied to transactions. — A solicitor Induced a client to advance money for A on a mortgage of land, and soon afterward in- duced a second client to advance money on mortgage of the same lands, without informing him of the existence of the first mortgage. The solicitor afterward left the country. The second mortgagee registered his mortgage first ; but he was held to have notice through the solicitor — notice of the first mortgage — and could not by the prior registration obtain priority. (Eolland v. Hart, 6 Law R. Ch. 678; Boursot v. Savage, 2 Law R. Eq. 134. See Kennedy v. Green, 3 Myl. & K. 699; Agra Bank, Limited, j.. Barry, 7 Law E. Eng. & I. Ap. Cas. 135.) It has been often decided that notice to a solicitor of a transaction, and about a matter as to which it is part of his duty to inform himself, is actual notice to the client. Mankind would not be safe if it were held that, under such circumstances, a man has not notice of that of which his agent has actual § 238 AUTHORITY AND POWERS. 409 § 238. Effect of judgment on authority. — It is said that the ordinary powers and authority of an attorney cease on the termination of the cause. After final judgment, his authority is limited to the receiving of satisfaction. For that purpose he may sue out execution.^ It is said he has no implied authority to bind his client by an agreement made after judgment, to post- pone execution.^ He may, however, direct and manage the ex- ecution, and if goods have been siezed on the execution, he may order the sheriff to withdraw from possession.^ But if the de- fendant has been arrested on execution the attorney has no im- plied authority to discharge him from custody, unless the money has been paid for which the execution issued.* The reason may be, that if the discharge was binding upon the creditor, he would lose his recourse against the person of the debtor ; but if the client continues the authority of the attorney after judg- ment, he gives him the usual powers.^ The English Court of Exchequer has fully admitted the general proposition that the force of an attorney's retainer is at an end, and his power to bind his client ceases when judgment is recovered ; and the court said : " We are bound by authority to admit it as a technical rule, but we are equally bound not to extend that rule one hair's breadth, since its effect on transactions in the relation of attorney and client is directly opposed to the com- mon action and understanding of mankind in such matters. To whom does it ever occur, except to a technical lawyer, that unless something further is done to re-establish the attorney's authority, it ceases at judgment, and that without new instruc- tions the steps necessary to obtain the fruits of litigation cannot be taken? It would be very mischievous to hold, in any case where evidence existed of the relation of attorney and client notice. The purchaser of an estate has, iu ordinary cases, no personal knowl- edge of the title, but employs a solicitor, and can never he allowed to say that le knew nothing of some prior incumbrance, because he was not told of it by the solicitor. Any kind of actual notice is better than a registration. 1 Maebeath v. Ellis, 4 Bing. 578; Langdon v. Potter, 13 Mass. 319. 2 Lovegrove v. White, Law Kep. 6 C. P. 440. 8 Levi «. Abbott, 4 Ex. 588. * Savory v. Chapman, 11 Ad. & B. 829'; Oonnop v. Ghallis, 2 Ex. 484; Lewis v. Gamage, 1 Pick. 347. 6 Butler V. Knight, 2 Law K. Ex. 109. 410 AUTHORITY AND POWERS. § 239 having been continued or recreated, that the attorney had not authority to act according to the exigency of the case." The authority may be continued by any acts showing the client's intention that his attorney shall continue to aet in that relation.-' § 239. Control over the judgment and execution. — An attorney, by virtue of his general employment, has no authority to discharge a judgment, unless on full payment of the amount ;2 nor to assign the judgment or execution ; ^ nor to consent to va- cate a judgment which is pending and secured on appeal.* His power, however, extends to opening a default which he has taken, and vacating the judgment, it is held, even though his client has instructed him to the contrary.^ Some cases hold that the attorney of 'a judgment creditor has implied authority to direct the sheriff as to the time and manner of enforcing the execution ; ^ to discharge a defendant from arrest on a ca. sa. issued by him ;' to stay execution upon a judgment,^ or to take out execution on a judgment recovered by him for his client, and to procure a satisfaction thereof by a levy on lands, or otherwise, and to receive the money due on the execution.^ It is said that the common-law doctrine is that the authority of an attorney ceases upon the rendition of the final- judgment, except that for a year and a day he may enforce it.-"* He can- not release damages,^' nor prosecute a scire facias without a new warrant,^^ nor discharge a defendant from execution without ac- 1 Butler V. Knight, 2 Law R. Ex. 109. 2 Beers v. Hendrickson, 45 N. T. 665; Wilson v. Wadleigh, 36 Me. 496; Jewett V. Wadleigh, 32 Me. 110; Bank v. Govan, 18 Miss. 35. 8 Ibid. * Quinn v. Lloyd, 36 How. 378; 5 Abb. N. S. 281. 6 Read v. French, 28 N. Y, 285; Anon. 1 Wend. 108; Gaillard v. Smart, 6 Cow. 383. 6 Willard «. Goodrich, 31 Vt. Siff; Gorham «. Gale, 7 Cow. 739; Erwin v. Blake, 8 Peters, 18; Lynch v. Commonwealth, 16 Serg. & R. 368. ' Hopkins v. Willard, 14 Vt. 474; Scott v. Seller, 5 Watts, 235. But not with- out satisfaction. Kellogg v. Gilbert, 10 Johns; 220; Simonton v. Barrell, 21 Wend. 362. 8 Silvis V. Ely, 3 Watts & S. 120. 8 Union Bank v. Geary, 5 Peters, 98; Erwin v. Blake, 8 Peters, 18. i» Holbert v. Montgomery's Admrs. 5 Dana, 14; Jackson ex dem. McOreau. Bartlett, 8 Johns. 361; Kellog v. Gilbert, 10 Ibid. 220; Crary v. Turner, 6 Ibid. 53; Richardson v. Talbot, 2 Bibb, 282. " 1 Salk. 89. 12 Gonnigal v. Smith, 6 Johns. 108; Cro. Eliz. 177; Atwood v. Burr, Ld. Raym. 1252. § 239 AUTHORITY AND POWERS. 411 tual satisfaction. After the rendition of a final judgment, it is held in Kentucky, that the original attorneys by whom the suit was prosecuted and defended have no authority resulting from their original employment, to consent to set it aside.^ An at- torney is not authorized by his retainer to satisfy a judgment without payment, and if he does so the court will set such satisfaction aside ; and although an attorney should hold the judgment by assignment as security for debts due from, his client, his satisfaction without payment is good only for the amount of his interest.^ An attorney cannot, by virtue of his general retainer, satisfy a judgment without payment of the full amount in money. If he takes anything else, or a less amount than the entire sum, the plaintiff is not bound. ^ The burden of proof is upon an at- torney to show that he was authorized to receive anything but money. No such authority is presumed.* Where a debt is fully secured by levy upon property of the defendant sufficient to satisfy the judgment, the attorney is not permitted, without special authority, to discharge the lien of the judgment and execution, without receiving payment of the debt in full. And if the client repudiates the transaction im- mediately, and gives up securities taken by the attorney, the judgment will not be considered as discharged as against the defendant who knew the facts, and had, therefore, legal notice that the attorney exceeded the authority which he possessed under his general retainer. But the client should within a rea- sonable time signify his dissent, or the court may presume that the attorney had a special authority to so act, especially if the client receives the benefit of the security taken by the attorney on the compromise or settlement the latter makes_.^ 1 Holbert v. Montgomery's Admrs. 5 Dana, 11; Herron v. Farrow's Heirs, 7 B. Mon. 126. 2 Beers v. Hendrickson, 45 K. Y. 665; Lewis v. Woodruff, 15 How. Pr. 539. 8 Trumbull v. Nicholson, 27 111. 149; McCarver v. Nealy, 1 Iowa, 360; Smock v. Dale, 5 Rand. 639; Lewis v. Gamage, 1 Pick. 347; Vail v. Conant, 15 Vt. 314; Jewettw. Wardleigh, 32 Mo. 110; Beers v. Hendrickson, 45 N. Y. 665; Wilkin- son J). Holloway, 7 Leigh, 277; Garthwaite v. Wentz, 19 La. An. 196; Lewis u. Woodruff, 15 How. Pr.5.S9; Wakeman v. .Tones, 1 Cart. 517; Benedict v. Smith, 10 Paige, 126; Jackson v. Bartlett, 8 Johns. 361; Chapman v. Cowles, 41 Ala. 103; Jones v. Ransom, 3 Ind. 327; .Abbe v. Rood, 6 McLean, 107. * Portis V. Ennis, 27 Tex. 574. 5 Benedict v. Smith, 10 Paige, 126; Givins v. Briscoe, 3 J. J. Marsh. 532; Wick- liif V. Davis, 2 Ibid. 71; Greenville v. Roberts, 7 La. 66. 412 AUTHORITY AND POWERS. § 239 Under the ordinary employment to collect a claim by suit, an attorney cannot release or postpone the lien on lands resulting from the possession of the claim to judgment, nor can an honest belief that the release or postponement will be for the client's benefit, supply the want of authority to make such arrange- ment. The authority for such action must be express or im- plied beyond the mere retainer to sue and collect the claim. ^ An attorney has no right to purchase real estate under his client's execution for such client, unless thereto specially authorized.^ The attorney of an execution creditor hag full authority to direct an officer as to the time and manner of enforcing the ex- ecution,^ and it is said that the attorney's authority does not cease with the entry of judgment in so far as he has a right to issue an execution, although he has no right to discharge such execution without receiving satisfaction. Proceedings in the execution are said to be proceedings in the suit, and the attorney may postpone the execution on the judgment against the indorser of a note, and issue one on the judgment against the maker.* An attorney may take out execution upon a judgment recovered, and procure a satisfaction thereof by a levy on lands or other- wise, and receive the money due on the execution, and thus dis- charge the execution,® but he cannot stay an execution when it would have the effect to release a surety.^ Plaintiff's attorney has power under his original retainer to authorize an oflScer holding a fi. fa. issued by him to depart from the regular and ordinary course of executing it ; ^ and he has control over the execution in every respect. He may with- draw it from the hands of the sheriff, or suffer it to become dormant, or authorize the officer to depart from the usual course of his duty.^ He has authority to direct or consent that goods 1 Wilson V. Jennings, 3 Ohio St. 528. 2 Washington «. Johnson, 7 Humph. 468. s Jenney v. Delesdernier, 20 Me. 183; Lynch v. Commonwealth, 16 Serg. & E. 368; Gorham v. Gale, 7 Cowen, 739; Kebb v. White, 18 Tex. 572; Willard v. Good- rich, 31 Vt. 597; Kimball & Co. v. Geary, 15 Vt. il4. ^ Union Bank v. Geary, 5 Peters, 98; Read v. French, 28 K. Y. 285; Silves v Ely, 3 Watts & S. 420. 6 Brwin «. Blake, 8 Peters, 18. 6 Bank v. Govan, 18 Miss. 333; Giyens v. Briscoe, 3 J. J. Marsh. 532. ■■ Corning v. Southland, 3 Hill, 552. SIbid; Read «. French, 28 N. Y. 293; Waters «. Sykes, 22 Wend. 564. §§ 240-1 AUTHORITY AND POWEES. 413 levied upon, being of a perishable nature or liable to be pilfered, be sold by the sheriff, and the proceeds kept for distribution. ^ In a case where the attorney of the plaintiffs in an action on a promissory note agreed with the defendant, whose intestate was indorser of the note, that if she would confess judgment, and not dispute her liability upon the note, he would immedi- ately proceed by execution to make the amount from the drawer, the principal debtor, who he assured her had sufficient property to satisfy the same ; it was held that this agreement fell within the scope of the general autlaority of the attorney, and was binding upon the plaintiff. Subsequently it was ascer- tained that the defense of the indorser could not have been sus- tained, but this was held to make no difference, for the consid- eration of the promise of the attorney to proceed by execution against the drawer was the relinquishment of a defense which the defendant at the time considered legal and valid.^ § 240. Authority to satisfy judgment. — An attorney is not authorized by his general retainer to satisfy a judgment without payment, and if he does so, the court will set aside the satisfaction ; and although an attorney should hold the judg- ment by assignment, as security for debts due from his client, his satisfaction without payment is good only for the amount of his interest.^ So he may not receive less than the face of the judgment in full satisfaction, without express authority so to do, unless in cases where the judgment-creditor has known of his action and not repudiated it for a long period of time. Thus, an attorney agreed to receive a sum of money and certain col- laterals less than the face of a judgment in its satisfaction. After a lapse of ten years, and without any demand being made by the judgment-plaintiff, or any steps taken to collect the judg- ment, it was presumed that the attorney had authority to so act, or that plaintiff had ratified his attorney's course.* § 241. Vacating judgment. — After judgment is entered, an attorney may bind his client by consenting to open the judg- 1 Nelson v. Cook, 19 111. 440. 2 Union Bank v. Geary, 5 Peters, 98, 3 Beers v. Hendriokson, 45 N. Y. 665; Lewis v. Woodruff, 15 How. Pr. 539; Carter v. Talcott, 10 Vt. 471; Penniman v. Patchin, 5 Vt. 346. * Eeid V. Dickinson, 37 Iowa, 56. 414 AUTHORITY AND POWERS. § 242 ment ; though, if he does so without consulting his client, he may be liable for any loss which his negligence in this respect may have caused. 1 § 242. Authority after judgment. — When the attorney undertakes acts out of the usual range of his duties, the pre- sumption of authority, based upon his general employment, no lotiger applies. Parties dealing with him in such cases are put upon their inquiry as to his authority. If they do not inquire, their loss is imputable to their own negligence.^ So far as con- cerns the judgment-debtor, such acts as releases without pay- ment are void, if unauthorized.^ But an attorney may do an act which would be collusive and void as to the opposing party, yet good as to innocent strangers. The attorney may enter satisfaction on his client's judgment, and if he does so corruptly or negligently, and without consulta- tion, this will not release the judgment-debtor. But if hona fide, purchasers from the judgment-debtor buy his real estate when the judgment on it is certified to be satisfied, the rule is otherwise. Such purchasers are entitled to regard the entry as releasing, the judgment-creditor's lien, wherever the practice is to enter such satisfaction by attorney.* But if the attorney is employed to try a litigated issue, his general authority may be regarded as terminated with the trial of the case. If he is em- ployed to collect a debt, this implies as great a discretion vested in him after judgment as before.^ The continued employment of the attorney after judgment may be regarded as vesting in him authority to collect the judg- 1 Wharton on Agency, sec. 587; Clussman v. Merkel, 3 Bosw. i02; Read u. French, 28 K Y. 285; Quinn v. Lloyd, 5 Abb. Pr, N". S. 281; 36 How. Pr. 378. 2 Harrow v. Farrow, 7 B. JNIon. 126; Jewett v. Wadleigh, 32 Me. 110; Banks v. , Evans, 18 Miss. 10 Smedes. & M. 35; ITnion Bank r. Govan, IS Miss. 10 Smedes & M. 333; Averill v. Williams, 4 Denio, 295; Webb v. White, 18 Tex. 572: Love- grove V. White, Law. R. 6 Com. P. 253. An attorney employed to collect a debt, on which he causes suit to be brought, resulting in a sale of laud upon execu- tion, can do no act after the time for redemption has expired, without new , authority, and if he then receives and pays redemption money to the plaintiff in execution, who has previously transferred the certificate, he will be liable to the defendant therefor. (McLain v. Watkins, 43 111. 24.) 8 Kellogg V. Gilbert, 10 Johns. 220; Simonton v. Barrell, 21 "Wend. 362; Givens V. Briscoe, 3 J. J. Marsh. 532; Wliartou on Agency, sec. 588. 4 Wharton on Agency, sec. 588; Wyooff v. Bergen, 1 Coxe, 214. 5 Ibid ; McDonald v. Todd, 1 Grant, 17 ; Butler v. Knight, Law R. 2 Ex. 109. §§ 243-4 AUTHORITY AND POWERS. 415 ment by the usual modes, and to use the usual expedients for that purpose.! § 243. Authority over auxiliary proceedings. — An at- torney is only authorized to appear and act for his client in the proceedings which constitute a part of the action. He has no authority to appear for the party in other proceedings not form- ing essentially a part of the action ; particularly when they par- take of a criminal nature and involve his liberty. A proceed- ing relative to a contempt is a new proceeding, requiring new authority to the attorney. He has no general authority to ac- cept service of an order to show cause in proceedings against the party for contempt. Personal service is necessary.^ The attorney has no authority to assign a judgment, unless special authority be given. Still, if it is assigned by the attorney to defendant for full amount, no execution can issue on the same, and the remedy of the client is said to be against the attorney.^ Under a general retainer, an attorney of record is authorized to prosecute the suit to judgment, and may also issue execution and receive the money for which judgment is recovered, and upon receipt of the money may discharge the party, and ac- knowledge satisfaction of the judgment ; but still it seems not to be the duty of the attorney under such a retainer to do more than perfect the judgment which is a termination of the suit.* § 244. PoTwers of lavr partners. — It appears that a law partnership does not confer on any of the partners the exten- 1 Jenney w. Delesdernier, 20 Me. 183; Read v. Frencli, 28 X. Y. 285: Erwinw. Blake, 8 Peters, 18; Scott v. Seller, 5 Watts, 235; Lynch v. Com. 16 Serg. & E. 388; Kelson w. Cook, 19 111. 440; Corning v. Siitherland, 3 Hill, 552; Hyams «. Michel. 3 Rich. 303; Hopkins v. Willard, 14 Vt. 474; Gorham«. Gale, 7 Cowen, 739; Willard c. Goodrich, 31 Vt. 597; Day v. Wells, 31 Conn. 344; Steward v. Bid- dlecum, 2 N. Y. 103. See Sllvis v. Ely, 3 Watts & S. 420; Hollington Ex .parte, 43 Law J. Ch. 99; Jewett i'. Wadleigh, 32 Me. 110. 2 Pitt V. Davison, 37 Barb. 97; Headley v. Good, 24 Tex. 232; Walradt v. 5Iay- nard, 3 Barb. 584. 8 Maxwell v. Owen, 7 Cold. 630. An attorney who receives a note from his client to collect, is warranted by his general retainer to bring a second suit on the note, after being nonsuited in the first for want of sufficient proof of the execution of the note, (Jackson v. Wilson, 12 Johns. 317.) 4 Adams v. Port Plain Bank, 23 How. Pr. 58; Stewart v. Biddlecome, 2 Comst. 106; Harris v. Osborne, 2 Cromp. M. & R. 629; Bothers v. Manning, 1 Barn. & Adol. 15; Berthold i;. Fox, 21 Minn. 51. 416 AUTHORITY AND POWERS. § 244 sive powers of mercantile associations. The partners have not in the ordinary course of business an implied power to bind each other by bills of exchange signed with the name of the firm in the mode prevailing among merchants, nor has one of the firm a power to bind another by an undertaking given in the name of the firm in a professional capacity on behalf of a client, it not being an ordinary transaction.^ "When a client retains a firm, he is presumed to be entitled to the united exertions of all the partners. The firm may give notice to the client that they will no longer be concerned for him, and then be entitled to their fees ; but by the voluntary retirement of the firm, the joint retainer given in any one case is discharged, and if the client substitute a new attorney, he is entitled to have the papers delivered over to such new solicitor for the purpose of the cause, without previous payment of the costs, saving to the former solicitors, or any of them, their lien on the papers for their costs incurred ; ^ and it would seem that on grounds of breach of confidence either of the firm formerly employed by the client might be restrained from acting against him.^ Changes in a firm of attorneys, moreover, sometimes affect the lien of the partners for costs. As where a firm of two transacted business for a client till a certain date, after which time the firm joined with them another partner and continued to act for the client, obtaining possession of fresh papers of the iHadley «. Bainteidge, 3 Q. B. 316; 2 Gale & D. 483; 11 Law J.N". S. 483; Hazleham v. Young, 5 Q. B. 833; 1 Dav. & M. 700; 8 Jur. 338; 13 Law J. Q. B. 205. See Livingston v. Cox, 6 Barr. 360. An attorney cannot bind Ms partner by a promise to indemnify an officer for committing a person to jail, but it may sometimes be inferred that he acted for both, and a subsetxuent ratification by the other partner will bind him. (Marsh v. Gold, 2 Pick. 285.) But an attorney who has received notes for collection is individually responsible for care and diligence in the collection, although he gives his client notice that he has associ- ated with him a partner who attends to the collecting; unless the client has recognized the partnership in the transaction of his business. (Mardis v. Shackle- ford, 4 Ala. 493.) A claim was placed in the hands of two attorneys, who were partners in the practice of law, for collection. Judgment was obtained, land of the debtor was sold under execution, and redemption from the sale was made by paying the money to the sheriff, who paid it over to one of the attorneys. Prior to the redemption, the law co-partnership between the attorneys was dis- solved. Held, that both the partners were liable to the client for the money ' thus received by one of them after the dissolution. (Smyth v. Harviej 31 111. 62. ) 2 Cook V. Rhodes, 19 Ves. 273; 3 Ves. & B. 177; Griffiths r. Griffiths, 12 Law J. N. S. 397; 2 Hare, 587. s Cholmondeley v. Clinton, 19 Ves. 261. § 245 AUTHORITY AND POWERS. 417 firm, it was held that no lien attached on these papers for costs due to the former firm.^ A member of a law firm, where the business is conducted in his name solely, may sue in his own name for a demand due the firm.^ But the party sued may set off a demand against the firm.^ If attorneys who are copartners accept a retainer, the con- tract is joint, continuing to the termination of the suit. Neither ■ can be released from the obligations they have assumed, so far as their clients are concerned, by a dissolution of the firm, or any other act or agreement between themselves.* They are equally responsible for moneys collected and not paid over, though one of them had no participation in the particular trans- action.^ Demand on one is also constructively a demand on both, and renders both liable ; and so if one does the business of the client unskillfully, both are liable to him in damages, if the facts are such as to constitute any liability at all.^ But the con- tract is determined by the death of one of the partners.^ § 245. Po-wers of lavr clerks. — Attorneys do not appear at liberty to entirely delegate to clerks the duties intrusted to them by clients, even though the clerks be what are called man- agina: clerks.^ A clerk commencing business for himself cannot be restrained from acting as solicitor for parties against whom his master was employed, upon general allegations of his hav- ing, in his former service, acquired information likely to be prejudicial to the clients of his master.^ There are, however, 1 In re Forsham, 17 Law J. Ch. 61. ■' Piatt V. Hulen, 23 Wend. 456. 8 Lansing v. McKillus, 7 Coweu, 416. 4 Walker v. Goodrich, 16 HI. 341; Morgan v. Roberts, 38 111. 65. 5 Dwight V. Simon, 4 La. An. 490. 8 McParland u. Orary, 8 Cowen, 253; "Warner a. Griswold, 8Wend.665; MoGill V. McGill, 2 Met. (Ky.) 258; Livingston v. Cox, 6 Pa. 360. 7 MoGill ■«. McGill, 2 Met. (Ky. ) 258. 8 But sometimes, in the absence of the attorney, the clerk is supposed to rep- resent him as to all ordinary business of the office. Such, at least, seems to be the New York plan. (Power d. Kent, 1 Cowen, 211; see Anon. ICaines, 73; Rath- bone V. Blackford, 1 Caines, 343; Cooper v. Carr, 8 Johns. 360; Paddock v. Bee- bee, Cole. 135; 2 Johns. Oas. 117; Tremper «. Wright, 2 Caines, 102; Jackson u. Yale, 1 Cowen, 215.) 5 Briehen v. Thorp, 1 Jacob, 300; Corning v. Cooper, 7 Paige, 587. A. & C— 27. 418 AUTHORITY AND POWERS. § 246 various acts which the clerk is deemed authorized to perform. Thus the clerk is usually considered the authorized agent of his master, in actions at law, to accept service of notices, and to re- ceive such service ; and what is said by him in the office in the course of business, as to acceptance of process, may be taken to be said by him as agent, and the principal is not generally at liberty to repudiate it.^ Where a clerk is intrusted with the management of a trial, any arrangement made by him at the time of trial is equally binding as if it were made by the attor- ney himself.^ The clerk, like any other sub-agent, is only liable to his immediate principal. He is not accountable to the client for money received by him on behalf of the master acting pro- fessionally for the client ; but he is so far regarded as the confi- dential agent of the client that he cannot disclose privileged and confidential communications made to him by the client.^ An attorney's managing clerk, in the absence of the attorney, represents him as to all the ordinary business of the office ; and the acts and declarations of the clerk, in matters within the scope of his agency, will bind the principal. And so where, during the principal's absence, he received an amended replica- tion, and agreed to waive the formality of a rule for such amend- ment, it was held binding upon the attorney.* But however extensive the ■ general powers of a clerk, he cannot discontinue an action without the consent of the principal,' nor bind the client by a discharge without satisfaction of a debt due the lat- ter : ^ and indeed, even the attorney's authority does not extend that far. § 246. Employment of substitutes.— It is within the gen- eral authority of an attorney to employ subordinates, but not substitutes. The only exceptions appear to be in cases of actual necessity, or where the interests of the client are clearly pro- 1 Fowler v. Roe, 4 Dowl. & L. 639. ' 2 Baker v. Black, 8 L. T. Ex. 393. 3 Mills V. Oddy, 6 Car. & P. 728; Jackson v. French, 3 "Wend. 339; Parker v. Carter, i Munf . 273; Stephens v. Bahoock, 3 Barn. & Adol. 357. * Power V. Kent, 1 Cowen, 211; Sibley v. "Waffle, 16 N. Y. 183; Birkbeck v. Stafeord, M Abb. Pr. 285. 6 Irvine v. Spring, 7 Rob. (N. Y.) 293. 9 Carter v. Talcott, 10 Vt. 471; Penniman v. Patchin, 5 Vt. 346. § 246 AUTHORITY AND POWERS. 419 moted, as where the expenses of a journey may be saved.^ The foundation of this rule is, that the attorney's employment is one of special trust, and should not be delegated without the client's special consent.^ An attorney, by virtue of his ordinary powers, cannot delegate his authority to another so as to raise a privity between such third person and his principal, or to confer on him, as to his principal, his own rights, duties, and obligations.^ Although, by the employment of an attorney at law to con- duct a cause, a personal trust and confidence is reposed which cannot ordinarily be delegated to another, except by the consent of the first employer, yet a delegation made without authority may be afterward assented to by the party interested, with full knowledge of the facts, and if it is, it is as binding on him as if made with full authority. Or if proper information be soon given to the ■ person interested of such unauthorized delegation, and he do not dissent from it, he will be held to have acquiesced in it. Silence in such case amounts to a ratification. But in a case where no information of the delegation was given until nearly three years had elapsed, and then only on application of the person interested, although no dissent was expressed, still no ratification was presumed.* An attorney may substitute another in his place and stead if the client knows of the substitution, and either accepts the serv- ices or does not object, and he is bound by the substitution ; and in an action by an attorney on a special contract for professional services, under the general allegation of performance, the plaint- iff may prove performance by substitution with the defendant's consent. Such proof entitles the plaintiff to a recovery as if the contract had been fully performed by the plaintiff in person.^ Especially in the absence of the employer the attorney may, if 1 Power V. Kent, 1 Cowen, 211; Birbeck v. Stafford, 14 Abb. Practice R. 285; 23 Hpw. Pr. 236; McBwen v. Mazyck, 3 Rich. 210; Cook v. Ritter, i B. D. Smith, 253, 2 In re Bleakley, 5 Paige, 311; Hitchcock v. McGhee, 7 Port. 536; Johnson v. Cunningham, 1 Ala. 249; Kellogg v. Korris, 10 Ark. 18; Ratoliff v. Baird, 14 Tex. 43; PoUand v. Rowland, 2 Blackf. 22. 3 Johnson v. Cunningham, 1 Ala. N. S. 249. 4 Hitch-cock D. McGehee, 7 Port. 556; King v. Pope, 28 Ala. 602; Bank v. Cor- coran, 2 Peters, 132; Bellu. Cunningham, 3 Peters, 81; Owings v. Hall, 9 Peters, 629; Amory v. Hamilton, 17 Mass. 109; In re Bleakley, 5 Paige 311. 6 Smith V. Lipscomb, 13 Tex. 537; Butler v. AUcorn, 8 Tex. 56; Johnson v. Cunningham, 1 Ala. 249; King v. Pope, 28 Ala. 601. 420 AUTHORITY AND POWERS. § 246 necessary, engage assistant counsel, and such counsel may charge his fees to the attorney or the client. But if the party be pres- ent, or his authorized agent, he should employ the assistant coun- sel, and without his consent the attorney managing is not au- thorized to employ the assistant. It is a question of fact to be submitted to the jury whether there was any such employment, and if services were rendered, whether they were to be per- formed gratuitously or to be paid for.^ Yet it is said the attor- ney in a case has not power as such to employ assistant counsel in the suit at the expense of his client, and an employment by him will not bind his client, unless it can be fairly inferred from the facts of the case that such authority was given by the client. This doctrine is distinguished from those cases where an attorney combines the character of an agent generally, and of an attor- ney to attend to the cause in court.^ An attorney, then, has no implied authority to retain associate counsel, and charge his client with liability for their fees, with- out consulting the client, if the client be present, or where he can be easily communicated with ; nor has he, under the same circumstances, any implied authority to employ a substitute to act in his place.^ But if the employer be absent and inaccessi- ble, the attorney employed to manage a suit may engage assist- ant counsel, especially if the appointment be necessary to pro- tect the client's interests ; and such counsel may charge his fees to the attorney or his client.* So subsequent acquiescence will be treated as ratification.^ So while, as a general rule, an attor- ney has not, as incidental to his employment, the power to pledge the credit of his client by employing counsel or another attorney as an assistant,^ yet where the facts in a particular case are such that it may fairly be inferred from them that 1 Briggs w. Georgia, 10 Vt. 68. 2 Paddock v. Colby, 18 Vt. 485; distinguished from Briggs v. Georgia, s^lpra. s Paddock v. Colby, 18 Vt. 485; Voorhies v. Harrison, 22 Ija. An. 85 ; Cook v. Ritter, 4 E. D. Smith, 253; Scott v. Hoxsie, 13 Vt. 50; In re Bleakley, 5 Paige, 311; Hitchcock v. McGehee, 7 Port. 556; Johnson v. Cunningham, 1 Ala. 249; Gillespie's Case, 3 Yerg. 525; King v. Pope, 28 Ala. 601; Smith v. Lipscombe, 13 Tex. 532; Briggs v. Georgia, 10 Vt. 68; Penno v. English, 22 Ark. 170. * Briggs V. Georgia, 10 Vt. 68, and cases cited supra. 6 Ibid. 6 Willard v. Danville, 45 Vt. 93; Mostyn t. Mostyu, Law Rep. 5 Ch. Ap. 457; Cook V. Ritter, 4 E. D. Smith, 253; Matter of Bleakley, 5 Paige, 311. § 246 AUTHORITY AND POWERS. 421 such an authority was given, the general rule should yield. ^ Where an attorney employs counsel, it is a question of fact whether he did not become personally liable for his fees, although for the benefit of his client.^ But if the client be present at the trial he is liable for services of counsel, although there was a secret agreement by the attorney that he would pay them.^ An attorney who becomes disqualified to act cannot complete the performance of his subsisting professional engagements by means of a substitute, though his clients assent to the substitu- tion ; because, what a person cannot in law do by himself, he cannot do by another.* Where a note is placed in an attorney's hands to collect, under a general retainer, he cannot delegate his authority to a third person, and authorize him to collect it ; and payment by the maker to such third person will not dis- charge him.^ Where an attorney employed to defend a suit is, after some progress, compelled by circumstances to retire from the cause, and he engages the services of a substitute who per- forms the duty, an action is maintainable by him for the whole services rendered. If the client is dissatisfied with the substi- tution, it is his duty to tender comjjensation for the services already rendered, and rescind the contract of employment.^ Where one attorney confided a note to another for collection, and took his receipt, but without giving instructions with re- spect to the ownership, and after the money was collected it was remitted to the payee of the note, whose name, however, was indorsed on the note ; this remittance — the payee not being the owner — was held not to discharge the collecting attorney from liability to his immediate principal, nor will the action of the latter for the money be defeated by proof that he was himself the agent for the indorsee, unless that person has asserted his right to the money as against his agent.' 1 Willard v. Danville, supra; Brigham v. Foster, 7 Allen, 419. 2 Serace v. "Whittington, 2 Barn. & C. 11. 3 Brigham v. Foster, 7 Allen, 419. < Eatcliff V. Baird, 14 Tex. 43. 5 Kellogg V. Norris, 10 Ark. 18. "Where an attorney receives a demand for collection, and without the client's knowledge delivers it to another attorney, who collects and fails to pay it over, the first attorney is liable for the money. (Pollard V. Rowland, 2 Blackf. (Ind.) 22; See Commins v. McLain, 2 Ark. 402; Herron v. Bullitt, 3 Sneed. (Tenn.) 497.) 8 Fenuo v. English, 22 Ark. 170. ' Lewis V. Peck, 10 Ala. 142. 422 AUTHOKITT AND POWERS. § 247 By the death of an attorney, the power of his substitute nec- essarily ceases. If an attorney has power to compromise, his duly appointed substitute has the same power.^ An attorney cannot recover of his client fees of counsel associated with him, without proving his employment of such counsel at the client's request, or that with his sanction he, the attorney, has paid the fees.^ When a party engages the services of particular attorneys, or of an association of attorneys, he is entitled to the services of every one of them ; and if one abandons the cause with the ex- press or implied consent of the others, or they attempt to supply his place with another of equal or superior qualifications, it will be no performance of the contract. And this, on the ground that it is a personal duty and trust which cannot be delegated.^ Where an attorney employed to conduct a suit employed an- other attorney to assist him, but not professing to employ him in behalf of his client, and it not appearing that he had author- ity so to do, and that he was the only person who did employ him, it was held that the employer was personally responsible without proof of an express promise.* § 247. Ratification by client. — As in the law of principal and agent, ratification by the client of the acts of his attorney must be after full knowledge of the fact, otherwise it is not ef- fective ; a ratification by a client of his attorney's acts outside of the latter's authority is invalid, if made without knowledge of all the circumstances.^ But, subject to these qualifications, ratification, and even silent acquiescence, will have the usual effect.^ But silence will not be construed as ratification if the acts are promptly repudiated.' Where it is held that an attor- ney has no power, by virtue of his general retainer, to compro- mise a debt, still if the client accepts the fruit of the compromise 1 Peries v. Aycinena, 3 Watts & S. B4. 2 Cook V. Eitter, 4 E. D. Smith, 253. s Morgan v. Roberts, 38 111. 65. * Scott V. Hoxie, 13 Vt. 50. 5 Williams t). Reed, 3 Mass. 405; Garvin v. Lowry, 13 Miss. 24. See Narragua- gus V. Wentworth, 36 Me. 339; Brooks v. Poirier, 10 La. An. 512; Chatauque Co. Bank v. Risley, 4 Denio, 480. 8 Maddux v. Bevan, 39 Md. 485; Brown v. Piatt, 8 Bosw. 324; Mason v. Stew- art, 6 La. An. 736. ' Lewis V. Woodruif, 15 How. Pr. 539. § 248 AUTHORITY AND POWERS. 423 with full knowledge of it, and without dissent, this may amount to a ratification, and is equivalent to a previous authority.^ § 248. Duration of authority. — An attorney once appointed continues in that character until judgment, or other termination of the suit ; ^ or until his death, or removal by the client ; ^ or until the client's own death ; * for the courts do not usually rec- ognize a retainer expiring in the middle of the proceedings,^ the attorney of record being the proper person to receive the fruits of the execution, and to enter satisfaction after payment,® and the attorney cannot at this more than at any other stage of the proceedings, abandon his client and act for the opposite side.'' The act, however, must be one connected with the main action, for where a scire facias is necessary to remove a judgment, a fresh authority is necessary, the proceeding being in the nature of a new action.^ New authorization is also requisite to justify bringing a writ of error. ^ The attorney cannot enter satisfac- tion on the roll without paymentj^" nor release damages, ^^ nor discharge the defendant from execution without payment.-"^ 1 Semple ti. Atkinson, 64 Mo. 504; Benedict v. Smith, 10 Paige, 126. 2 Lawrence v. Harrison, Comb. 40; Payne v. Chute, 1 Roll. R. 366; Style, 426; 8 Johns. 361; 8 Peters, 113; 1 Greenl. 257. 8 1 Chit; R. 193. < Co. Litt. 526; Palmer v. Reiffenstein, 1 M. & G. 96; 2 Pa. 689; 3 Mont. 566. «2Inst.378; Lee)). Ayrton, Peake, 117; Russell v. Palmer, 2 Wils. 325; 4 Burr. 2061; Bevins v. Hulme, 15 Mees. & W. 88; 3 D. & L. 722; 15 Law J. Ex. 226. An attorney in Pennsylvania has very extensive power in relation to conduct- ing a suit, but after judgment this plenary power in a great measure ceases, ex- cept as to his power in receiving the amount of the judgment, and giving a re- ceipt for it. (Stackhouse v. O'Hara's Executors, 14 Pa. 89; Babb v. Stromberg, Ibid. 397; Somers v. Balabrega, 1 Dall. 164; Eeinholdt v. Alberti, 1 Binu. 467.) He may discharge a defendant from arrest on ca. sa., (Scott v. Seiler, 5 Vt. 235) or direct the sheriff as to the time and mode of sale on an execution, (Lynch v. Commonwealth, 10 Serg. & R. 368). But he cannot take land for the debt of his client. (Huston v. Mitchell, 14 Serg. & R. 307 ; Stackliouse v. O'Hara's Executors, supra. See Willis i'. Willis' Administrators, 12 Pa. 159.) 6 Crozer v. Pilling, 4 Barn. & C. 34; Dowl. & R. 26; Gray v. Wass, 1 Greenl. 257; Anon. 12 Mod. 440. ' Lawrence v. Harrison, Styles, 426. 8 Hussey V. Welby, Sayers, 218; Cro. Eliz. 177; 2 Ld. Raym. 1048. 9 Batchelor v. Ellis, 7 T. R. 337; Parsons v. Gill, 2 Ld. Raym. 896. That an at- torney's authority to act for a distant client continues until the litigation is ended, see Love v. Hall, 3 Yerg. 408; as to appeals, see 1 Pick. 462; 1 Over. 343, 299; 5 Paige, 530; 5 Gowen, 35. 1" Davis V. Jones, 5 Dowl. 503. 11 1 Roll. Abr. 291, 1. 10. 12 Savory v. Chapman, 11 Ad. & B. 829; 3 Perry & D. 604; 8 Dowl. 656; 9 Law. J. Q. B. 186. 424 AUTHORITY AND POWERS. § 248 The payment must be in money, and not anything in lieu of money.-' It is<'a rule sustained by numerous authorities that the author- ity of the attorney ceases with the termination of the suit and the entry of judgment,^ and it is equally true that in the ab- sence of special circumstances the authority continues by vir- tue of the original retainer, until the final termination of the cause. The client may terminate it before, and so may the at- torney after reasonable notice ; but in absence of proof to the contrary, the presumption is that it continues until the litigation is ended.^ It follows as a consequence of the doctrine that the attorney's authority ceases with the determination of the cause, that a party may sue out a writ of execution, scire facias or error by a different attorney, without giving notice of the change.* But while the cause is pending, the court, for the protection of the attorney, will not permit a party to change his attorney without at least first paying the charges,* and until notice of change of attorney has been given to the opposite party, such party is entitled to treat the former attorney as still the attorney in the cause.^ After judgment, the attorney employed has no au- thority to revive or reverse the judgment without another war- rant of attorney.^ The plaintiff's attorney, from his general character as attorney, has no authority to discharge the defend- ant from execution on a ca. sa. until the money is paid. His general authority ceases with the judgment, or at least with the issuing of an execution within the year.^ After final judgment the plaintiff may employ a different attorney to commence gar- 1 1 Desaus. Eq. 469; 1 Hill, 184, ^ Daingertleld's Executors v. Thurston's Heirs, 8 Martin N. S. 232; Berthold v. Fox. 21 Minn. 51; Kronschoble «. Knoblauch, 21 Minn. 56; Egan «. Kooney, 38 How. Pr. 121; Jacksonj). Bartlett, 8 Johns. 361. See Kelloggu. Gilbert, 10 Johns. 220; Gorham v. Gale, 7 Cowen, 789. s Bathgate v. Haskins, 59 N. Y, 533; Lush o. Hastings.l Hill, 656; Mygatt c. "Wilcox, 45 K. Y. 308; Whitehead v. Lord, 11 Eng. L. & Eq. 588. * Tipping V. Johnson, 2 Bos. & P. 357; Burr v. Atwood, 1 Salk. 89; Batchelor V. Ellis, 7 T. E. 337; Thorp v. Fowler, 5 Cowen, 446; McLaren c. Charrier, 5 Paige, 530; State v. Gulick, 17 N. J. L. 4,35. 6 Langley v. Stapletou, Barnes, 40; Witt v. Ames, 11 Week. R. 751; 8 L. T. N. S. 425. 6 Powell V. Little, 1 W. Black. 8; Lewis i>. Sumner, 13 Met. 269. ' Richardson v. Talbot, 2 Bibb. 382. 8 Jackson v. Bartlett, 8 Johns. 361. See Kellogg «. Gilbert, 10 Johns. 220; Gor- ham V. Gale, 7 Cowen, 789. § 249 AUTHORITY AND POWERS. 425 nishee proceedings to collect it, without a formal substitution. ^ The authority of an attorney is terminated by the death of the client ; and the subsequent continuance of the suit in the name of his representatives without their consent is unwarranted.^ The authority may also be terminated by the death of the at- torney, or his removal or suspension from office, or his ceasing to act as attorney, or his removal from the State,^ or after ren- dition of judgment in the cause.* But it continues until final judgment is actually perfected, and prior to this service of pa- pers on him, though after the entry of a rule vacating the judg- ment is regular, such a rule not being a final judgment, and its effect being to leave the action still pending, until judgment shall be finally entered of record.^ After the docketing of the judgment, his general authority ceases, to the extent at least that an execution may be issued by a new attorney without substitu- tion. But unless his authority is expressly revoked, it continues incidentally for the purpose of enforcing the judgment, if any.^ § 249. Termination of the relation of attorney and client, and consequent termination of authority. — The re- lation of attorney and client is usually terminated by the term- ination of the particular proceeding or business for which he was employed.' If the attorney, however, is appointed to try a par- 1 Hinkley )■. Company, 9 Minn. 55. An attorney employed to collect a debt, prosecuted suit which resulted in a sale of land upon execution. After the time for redemption had expired, he re- ceived and paid redemption money to the plaintiff in execution, who before that time had transferred the certificate: it was held that the relation of attorney and client ended after the time for redemption expired, and that the attorney could do no act in the matter without new authority, and that the attorney was liable to the defendant in execution for the money so received. (McLain v. Watkins, 43 111. 24. See Smyth v. Harvie, 31 111. B2. ) 2 Wood V. Hopkins, 2 Pa. 689; Campbell v. Kincaid, 3 Moore, 68. See an ex- ception to this rule, but under very peculiar circumstances, in Booth v. Steer, 7 Jur. 678; 1 Dowl. & L. 374; Poole v. Steed, 11 Mees. & ^Y. 759. 3 Chautauqua County Bank v. Eisley, 6 Hill, 375. i 2 Inst. 378; Macbeath v. Ellis, 4 Bing. 578; 1 Moore & P. 513. 5 Lusk V. Hastings, 1 Hill, 656. SLuskt). Hastings, 1 Hill, 656; Nichols v. Dennis, E. M. Charlt. 188; Gray v. "Wass. 1 Me. 257; Flanders v. Sherman, 18 "Wis. 575. T Adams v. Bank, 23 How. Pr. 45; Bathgate v. Haskin, 59 N. Y. 533; Love v. Hall, 3 Yerg. 408; Langdou ii. Castleton, 30 Vt. 285; Jackson v. Bartlett, 8 Johns. 561; Richardson v. Talbot, 2 Bibb. 382; Gray v. Wass, 1 Greenl. 257; Hinkley V. Falls, 9 Minn. 55. 426 AUTHOKITY AND POWERS. § 250 ticular case, he is not entitled to withdraw when the trial is fin- ished, if it be proper or prudent to take an appeal or move for a new trial, and his client be at such a distance or in such a condition that he cannot be consulted. The attorney should take measures to have the judgment reviewed.^ The relation is also terminated by the attorney's death, and the opposite party, before taking any new proceedings, should give to the party left unrepresented notice to appoint a new attorney.^ The authority of an attorney usually continues until the end of the litigation, unless he is for some good reason dismissed by his client.^ His authority to act cannot be ended by his own voluntary act to his client's detriment.* After the death of the client, which terminates the attorney's authority, he cannot give nor receive notice of motions in the cause before the successor, made a party in due form, has authorized him to act.^ In some of the United States, it is held that an attorney's authority ter- minates with the entry of judgment for his client ; ^ but in other Sta,tes, it is said that his authority continues until judgment is satisfied, unless it be previously revoked by the client.' In England, also, the authority has been said to cease at the entry of the judgment, and that the attorney has no implied authority to make a binding agreement to stay execution, nor effect a valid compromise of the judgment.^ § 250. Revocation of authority, and change and substi- tution of attorney ; general rules. — The authority of an at- torney, like that of any other agent, is revocable ; and the courts 1 Bathgate v. Haskin, 59 IST. Y. 533; Bach v. Ballard, 13 La. An. 487. 2 Eyland v. Noakes, 1 Taunt. 342; Ashley v. Brown, 1 Lown. M. & P. 451; 15 Jur. 399; Lord v. Wardle, 3 Com. B. 295; Given v. Driggs, 3 Caines, ISO; Hildreth u. Harvey, 3 Johns. Cas. 300. 3 Langdon v. Castleton, 30 Vt. 285. 4 Love V. Hall, 3 Yerg. 408. 6 Putnam v. Van Buren, 7 How. 31; Austin v. Monroe, 4 Laus. 67; Balbi u. Duvet, 3 Eden, 418; Judson v. Love, 35 Cal. 163; Gleason v. Dodd, 4 Met. 333^ Bisley i>. Fellows, 10 111. 531; Campbell v. Kincaid, 3 Mon. 566; Succession of Liles, 24 La. An. 490. 6 Hincley v. St. Anthony Falls, etc. 9 Minn, 55; Jackson v. Bartlett, 8 Johns. 361; Adams v. Bank, 23 How. 45; Egan v. Eooney, 38 How. 121; Richardson i'. Talbot, 2 Bibb, 382. ' Gray v. Wass, 1 Me. 257; Nichols v. Dennis, R. M. Chart. 188; Elanders v. Sherman, 18 Wis. 575. ' Lovegood V. White, Law R. 6 C. P. 440; Butler v. Knight, Law R. 2 Ex. 109. § 250 AUTHORITY AND POWERS. 427 or a judge will, on due proof of the client's authority, make an order to change the attorney at any stage of the proceeding.-' It is held that the order to change is usually only necessary in proceedings strictly within the province of the attorney before employed. It appears not to be necessary in any pro- ceedings taken after judgment, such as issuing an execution, or a scire facias, entering satisfaction, bringing a writ of error, or moving to set aside a judgment.^ In case of a firm of attorneys, one of whose names appears on the record, an order to change the attorney is not necessary on a subsequent dissolution of the partnership.^ After the death of the attorney of record, although no formal order or rule is necessary, notice to the opposite party of the appointment of a new attorney should be given, or the party may be treated as suing or defending in person ; * but the proceedings taken by a new attorney, after the death of the at- torney originally employed, without any formal notice of his ap- pointment being served, will not be set aside for irregularity.^ When an attorney is changed, or one substituted for an- other, by leave of the court, if the court consent, the con- sent should be filed, or an order entered substituting the new attorney, and notice of the order should be served upon the op- posite party.^ The object of the practice is, that there may be some person to whom the adverse party may look. But when a 1 Glanville, lib. 11, chap. 3;Walcotti). Vouchee, 3Bing.423; Daviesjj.Louudes, 3 Com. B. 808; Wells v. Hatch, 43 N. H. 246; Hazlett v. Gill, 5 Robt. 611; Wolf t. Trochelman, lb. 611; Faust v. Bepoor, 15 How. Pr. 570. a Rex u. London, 2 Barn. & Adol. 604; Tipping v. Johnson, 2 Bos. & P. 357; Doe V. Bransora, 6 Dowl. 490; Marr v. Smith, 4 B. & A. 466; Batchelqr v. Ellis, 7 Term Rep. 337. « Farley v. Hebbes, 3 Dowl. 538. < Bradley v. Breach, 2 Keb. 275; Jenk. 179; Style, 13; Collins v. Arnold, 1 B. C. B. 217; Byland v. Noakes, 1 Taunt.'342. 6 Dord V. Wardle, 3 Com. B. 295. 6 This doctrine obtained in England at an early period. (Ray. 69; Com. Dig. Att'y B. 9; Oates v. Woodward, 1 Salk. 87, pi. 6; Beg. Gen. H. 16 Vict. E. 4; Mich. 1654, R. 10 K. B. C. P. R. 13; 1 El. & B. App. xxvi; May v. Pike, 4 Mees & W. 197; 6 Dowl. 667; Guiders v. Moore, 1 Barn. & C. 654; 8 Hen. VI, 8: 24 Edw. Ill, fol. 37. See Bloomer v. Branaom, 6 Dowl. P. C.490; Gilmouri). Brindley, 7 Dowl. & E. 259; Langley v. Staple, Barnes; 40; Krekeler v. Thaule, 47 How. Pr. 138; Ryland v. Noakes, 1 Taunt. 342; Robeston v. McClellan, 1 How. Pr. 70: Dalon V. Lewis, 7 How. Pr. 132; Macpherson ?;. Robinson, 1 Doug. 217; Da vies v. Lowndes, 3 Co'm. B. 808; Wynne v. Wynne, 2 Scott N. E. 615; 9 D. P. C..396; Farley J). Hebbs, 3D. P. C. 538; Rex «. Middlesex, 2 D. P. C. 147; Darnell v. Harrison, 1 Har. & J. 139. ) 428 AUTHORITY AND POWEES. § 250 party appears in court by a new attorney, to show cause against a rule served on him, it has been held that the omission to serve the order to change the attorney cannot be objected to.' The former attorney's lien appears to continue notwithstanding the change, so that he has a right to insist on the costs being taxed in order to secure the fruits to himself.^ A party has no right arbitrarily to change his attorney with- out paying the costs earned : and the original attorney is not bound to consent to a substitution, or deliver papers upon which he has a lien, until the amount of his just demands is ascertained by a court or referee and paid.^ But when a solicitor has aban- doned a cause, or when not faithful to it, or when he acts in a manner that is inconsistent with the trust that is reposed in him, the court will give its c6nsent that the solicitor be changed, and order that he deliver up the papers without payment of fees.* A party has a general right to change his attorney, and a rule for that purpose will usually be granted, leaving to the attorney the advantage of any lien he may have on papers or money in his hands, as security for his fees and disbursements.^ The usual mode of changing an attorney is by a rule, calling on the former attorney to show cause why another should not be appointed in his stead. Notice of the order changing the at- torney must be given to the adverse party, which is usually done by service of the order.^ The order may be drawn upon pay- ment of the attorney's bill of costs to be taxed. In case of non- payment, the attorney, it is said, may apply to rescind the order,'^ and pi-oceed in the action, if his costs are not 2:)aid within a rea- sonable time. When an attorney is discharged by his client, but not on the ground of misconduct, the court will not restrain i Lovegrove v. Deymond, 4 Taunt. 809. 2 Newton v. Harland, 4 Scott N. S. 769; See Merriweather v. Mellish, 13 Ves. 161; Twortti Dayrell, Ibid. 295. 3 Board v. Brodhead, 44 How. Pr. 411,. 426; Bolton v. Tate, 1 Swaiist. 84; Mum- ford V. Murray, 1 Hopkins, 369; Hoffman r. Van Nostrand, 14 Abb. 331; Parker V. Williamsburg, 13 How. 250. As to what protection will be accorded the orig- inal attorney, see Stevenson v. Stevenson, 3 Edw. 340; Cregler v. Cheesborough, 25 How. Pr. 200; Gardner v. Taylor, 5 Abb. Pr. N. S. 33; S. C. 36 How. Pr. 63. 4 Sloo «. Law, 4 Blatchf. C. C. 268. 6 In re Paschal, 10 Wall. 483. 6 Com. Dig. Att'y B. 9. ' See Langley h. Stapletou, Barnes, 40; Merry weather v. Mellish, 13 Ves. 161; Twort«. Dayrell, Ibid. 295; 1 J. C. R. 22; 2 Paige, 276; 4 Paige, 501. § 250 AUTHORITY AND POWERS. 429 him from acting for the opposite party, unless it clearly and dis- tictly appear that - he has obtained information in the former character which it would be prejudicial to the cause of his former client to communicate.^ The client, it has been held, must, on obtaining the order to change his solicitor, undertake to pay the amount of his bill of costs.^ The new solicitor may, however, proceed before the for- mer solicitor's claim for costs is actually satisfied, or even taxed ; but the lien exists, though the cause cannot be stopped.^ The attorney may be requii-ed to exhibit papers, when necessary, for the purpose of the cause, or for the inspection of the client.* If one attorney appears and pleads, another cannot make any appli- cation to the court, without an order of substitution, and unless the substitution be properly made, the acts of the substituted attorney may be invalid ;^ not, however, where the effect would be to oppress a party acting meritoriously.^ Notice of the substitution must be given to the opposite party, and must be served personally on such party or his counsel.'' In interlocutory proceedings, the objection that an attorney is not of record must be, when purely technical, fully sustained in f act.^ Numerous authorities hold that a substitution will not be permitted unless the costs of the first attorney have been paid.^ 1 Johnson v. Marriott, 2 Cromp. & M. 183; 2 Dowl. P. C. 343; i Tyr. 78; Grissell V. Peto, 2 M. & S. 568; 9 Bing. 1; Bricheno v. Thorp, 1 Jacob, 300. See Davis v. Clengle, 8 Sim. 262. But where an attorney abandons, his client of own accord, the courts mayinterfere and prevent his acting forthe opposite side. (Cholmon- deley v. Clinton, 19 Ves. 261.) 2 Moire v. Mundie, 1 Stu. 312. 3 Merry weather J). Mellish, 13 Ves. 161; Twort v. Dayrell, 13 Ves. 195; O'Dea v. O'Dea, 1 Schoales & L. 315; Creswell v. Byron, 14 Ves. 272. 4 Mayne v. Watts, 3 Swanst. 93; Moire v. Mundie, supra. 5 Ginders v. Moore, 1 Barn. & C. 654; Jerome v. Bowman, 1 Wend. 393; King V. Archer, 2 B. 0. R. 192; 5 Dowl. & L. 412. 6 Gerry v. Fisher, 6 Bast, 549; Margarell v. Makilwaine, 2 N. R. 509; Bloomer V. Branson, 6 D. P. C. 490; Fuller v. Brown, 10 La. An. 350; Thorp v. Fowler, 5 Cowen, 446; State v. Gulick, 17 N. J. L. 435. ' Given u. Driggs, 3 Caines, 300; Hildreth v. Harvey, 3 Johns. Cas. 300; Dorlon V. Lewis, 7 How. Pr. 132; Bogardus v. Richtmeyer, 3 Abb. Pr. 179; Grant v. White, 6 Gal. 55; Roussin v. Stewart, 33 Gal. 208. 8 Lord V. Wardle, 3 C. B. 295. 9 Witt V. Ames, 11 Week. R. 751; 8 L. T. N. S. 425; Sloo v. Law, 4 Blatchf. 268; Mumford v Murray, Hopk. Oh. 369; Hoffman v. Van Nostrand, 14 Abb. Practice R.336; Stevenson!.. Stevenson, 3 Edw. Oh. 340; Gardners. Taylor, 5 Abb. Pr. N S 83- S. 0. 36 How. Pr. 63; Supervisors v. Broadhead, 44 How. Pr. 411; 430 AUTHORITY AND POWERS. § 251 Although a party in an action may have no right to change his attorney without leave of the court,-^ yet the court will usually grant leave on the request of the party, but not without con- sulting the rights of the attorney, and will not allow the change until the just claims of the latter are discharged or secured. In case of substitution of attorney, it is held in New York sufficient to serve the notice of substitution without serving the order.^ Where, at different stages of the case, different attorneys had acted for one of the parties, without notice of substitution, the service of notice upon the last acting attorney, he being of record and recognized by the court, was considered sufficient.^ Where a party changes his attorney in an action, and there is no regular substitution of attorneys as pointed out by statute, notices may be served on the attorney of record.* A new attor- ney may issue execution in his own name without any formal substitution.^ When the attorney has died, or the notice has been given to the party to appoint a new attorney and he neg- lects to do so, notice of any proceeding in the cause may be given to the party personally.^ § 251. In England, — No attorney can be changed without the order of a judge or of the court. The order must be served Carver v. TJ. S. 7 Ct. of 01. 499; Pleasants v. Kortrechit, 5 Heisk. 694; Walton v. Sugg, Phill. (K. C.) 98. See In re Paschall, 10 Wall. 483. Wlien the lawyer re- sists the application of the client for a sutstitution, the court is to determine the validity of the cause for suhstitation. (Sloo v. Law, 4 Blatchf. 268; Arring- ton V. Sneed, 18 Tex. 135.) Negligence is sufficient cause for sustaining the ap- plication. (Walsh ;;. Shumway, 65 111. 472.) 1 Hoffman v. Van Nostrand, 14 Abb. Pr. 338 ; Macpherson v. Robinson, 1 Doug. 217; Tworti). Dayrell, 13 Ves. Jr. 196; Mumford v. Murray, Hopk. Oh. 369. See Trust v. Repoor, 15 How. Pr. 570. 2 Bogardus v. Richtmeyer, 3 Abb. Pr. 179. 8 Eoussin 11. Stewart, 33 Cal. 208. Where the court granted a motion for substitution of attorneys on the appli- cation of a client, upon condition that the client pay the sum found by the ref- erence to be due to the attorney, and the attorney, upon the sum being thus ascertained, tendered a substitution with the papers in the action, demanding payment of such sum, and the client then changed his mind and concluded to make no change, the court considered that it had no power, by summary pro- ceedings, to compel the party to accept the substitution and pay the money. (Gardner v. Tyler, 5 Abb. Pr. N. S. 33; S. C. 36 Hbw. Pr. 63.) * Grant v. White, 6 Cal. 55. * Thorp V. Fowler, 5 Coweu, 446. 6 Hoffman v. Riley, 13 Abb. Pr, 399. § 251 AUTHORITY AND POWERS. 431 on the opposite party.^ It is the invariable practice not to allow the attorney of record to be changed unless the costs of the first attorney have been paid, and the fact that such attorney has other sufficient security for his costs is no reason for depart- ing from the rule.^ After proper notice, all pleadings, notices, writs, orders, rules, and other proceedings, are to be delivered to or served upon such substituted attorney.^ Objections that interlocutory proceedings are not taken by attorneys of record, or properly substituted attorneys, are of a strict nature, and it is incumbent on the party making them to establish them distinct- ly. It is an irregularity for a defendant to take a declaration out of the office by one attorney and plead by another, without an order for changing the attorney. If no such order has been obtained and served, the court will set aside the plea.* But if the opposite party treat the new attorney as the attorney in the cause, he cannot afterward object that no order was made.^ A party called on to show cause may oppose the rule in per- son or by a new attorney, without notice to the other party of the order to change his attorney.^ A plaintiff may sue out ex- ecution by a different attorney, without an order to change,'^ and a defendant may bring error without such an order.^ When an order for changing an attorney on payment of costs has been made, and the attorney gives up the client's papers without the costs being paid, the court will not grant an attachment for their non-payment.^ If there is an order for changing upon payment of the first attorney's bill upon taxation and delivery up of papers, the first attorney is entitled to the possession of it to enable him to enforce payment of his bilL^" 1 Rex V. Middlesex, 2 D. P. C. 147; Reg. Gen. Q. B. C. P. and Ex. H. T. 16 Vict. r. 34; 1 El. & B. App. Ill; Macpherson v. Robinson, 1 Doug. 217. 2 Witt V. Ames, 11 Week. R. 751; 8 L. T. N. S. 425; Reg. Gen. (supra). 8 Lord V. Wardle, 3 Com. B. 295; 15 Law J. Com. P. 259. * King V. Aicher, 1 B. C. R. 219; Perry v. Fisber, 6 East, 549; Gimers v. Moore, 1 Barn. & C. 654; Margerem v. McKilwalne, 2 N. R. 509. 6 Farley v. Hebbs, 3 D. P. C. 538; 1 Har. & W. 203. Upon an applicatioji to . change the attorney when the client is unacquainted with the English language, the affidavits must clearly show that the purport and object of the motion are known to and sanctioned by the client. (Davies «. Lowndes, 3 Com. B. 808.) It is no objection to such an application that it is made after final judgment. « Lovegrove v. Dymond, 4 Taunt. 669. ' Tipping V. Johnson, 2 Bos. & P. 357; Perry v. Fisher, 6 East. 549. 8 Batchelor v. Ellis, 7 T. R. 387. 9 Handy v. Collett, 7 D. P. C. C. 599; 3 Jur. 870; 2 W. W, & H. 63. 10 Al^er ?', Hefford, 1 Taunt. 38. See Newton v. Harland, 4 Scott N. R. 769. 432 AUTHOKITT AND POWERS. § 251 In the English courts of common law, a client, after he has retained an attorney, and such attorney has acted in a cause, cannot change him without leave of the court. If he is changed without an order of court, the opposing party may still con- sider him the acting attorney.^ Neither attorney can interfere except by the consent of the first, or in the event of his death.^ Nor can an attorney be changed until his costs are paid.^ When an attorney is substituted, the fact should appear upon the records.* For the purpose of changing an attorney a summons is taken out, and a judge's order obtained thereon. A copy of the order is served on the opposite attorney. No new warrant of attorney is necessary.^ Upon the death of an attorney notice is given to the opposite party of the appointment of the new at- torney before he can proceed in the cause.^ Notice of justifica- tion of bail by a new attorney, changed without order of court, is not allowable.'' The Court of Exchequer appears to take no notice of the immediate attorney in a cause, as the proceedings are carried on there in the name of the clerk in court.* Where a writ was issued in the name of two attorneys, a dec- laration in the name of one of them was held good, without any formal substitution ; and the same principle was applied where two attorneys were partners, and the partnership was afterward dissolved, and the other partner took proceedings, which were recognized by the adverse attorney. The court refused to set aside the proceedings for want of an order to change the attor- ney.^ The substituted attorney must take notice, at his peril, of all rules and laws to which the former attorney would have been liable had he not been changed.-"* 1 Anon. 7 Mod. 50; McPherson «. EolDinson, 1 Doug. 217; Powell v. Little, 1 AV. Black. 8. 2 Anon. 2 Eel. 456. 3 Langley v. Stapleton, Barnes, 40. 4 Anon. 12 Mod. 440; Sayers, 218. ^ Wood V. Plant, 1 Taunt. 44. 6 Eyland v. Noakes, 1 Taunt. 342. ' Hill V. Eoe, 2 Marsh. 257 ; 6 Taunt. 532. But see Plomer v. Houghton, 2 Barn. & Aid. 604. 8 Hopkins v. Peacock, 5 Price, 558. 9 Armstrong v. King, 8 Dowl. O. S. 297; Farley v. Hehbs, 3 Ihid. 538; 1 Har. & W. 203. 1" Macpherson v. Eorison, Doug. 217; Anon. 7 Jlod. 50; Kaye v. De Mattos, 2 W. Black. 1323; Powell v. Little, 1 Ibid. 8; Ginders v. Moore, 1 Barn. & C. 654. § 251 AUTHORITY AND POWERS. 433 As to the acts of the substituted attorney, in case the change is not made in the manner pointed out by statute or otherwise, and proper notice given, the opposite party and his attorney are justified, under such circumstances, in considering the original attorney as still employed. They are not obliged to take notice of any proceedings by the substitute, unless the proceeding is sanctioned in some way by the court. So payment to the sub- stitute in such case may not be good payment to the client, and notice of justification of bail, or a plea put in by an attorney ir- regularly substituted, have been held to be also irregular.^ But in criminal cases it has been held that when a defendant is a prisoner, notice of justification of bail may be given by a new attorney, without an order for changing the former attorney.^ The opposite party may waive any irregularity, as by accepting a notice or pleading, and retaining it, or in any way treating the substitute as the attorney in the cause.^ Generally, however, if a notice of motion to the court for any purpose be given by a new attorney, without a due substitution and notice thereof, the motion will be denied with costs.* In the English chancery it appears a client may change his solicitor without a previous order of court, and though the so- licitor may retain the papers in his possession as a lien for his costs, yet he cannot stop the progress of the cause until he is paid.^ The client may appoint another solicitor or sworn clerk, and the former one must produce the papers for the purposes of the suit.^ The client has the right of inspection of those papers at reasonable times, while they are in the possession of his first solicitor.'^ As a solicitor is not allowed to assign the business of 1 Ginders v. Moore, 1 Barn. & C. 654 and Hill v. Roe, 6 Taunt. 532; 2 Marsh. 257; Haggott v. Argent, 7 Taunt. 47; 2 Marsh. 365; Buckler v. Rawlins, 3 Bos. & P. Ill; Perry v. Fisher, 6 East, 549; Lovegrove v. Dymond, 4 Taunt. 669. 2 Keys V. Tavernier, 1 Chit. 291. See also Haggett v. Argent, supra; Rex v. Sherifes, 2 Barn. & Aid. 604; 1 Chit. 329. 3 Margerem v. Mackelwaine, 2 N. R. 509; Farley v. Hebbes, 3 Dowl. O. S. 538. 4 Jerome v. Boeram, 1 Wend. 293. See Doe v. Bransom, 6 Dowl. O. S. 490; Lovegrove v. Dymond, 4 Taunt. 669. 5 Twort V. Dayrell, Ves. 195; Creswell v. Byron, 14 Ves. 272-, 1 Sehoalesfe L. 315. SeeWalmsleyu. Booth, 3 Atk. 27. 6 Mayne v. Watts, 3 Swanst. 93. „ 7 Moire v. Mundie, 1 Stu. 282. A. & C— 28. ■134 AUTHORITY AND POWERS. § 252 his client to others, an attempt to do so dissolves the relation of solicitor and client, and a communication to that efEect from the solicitor to the client is sufficient evidence of the fact to effect such dissolution. In such a case the papers were ordered to be delivered to the client's new solicitor, upon his signing a receipt for them, and agreeing to hold them subject to the lien of the former solicitor.^ This prohibition against assignments extends also to dissolving partners, one of whom cannot, without the cli- ent's consent, turn the business over to the other. They may give notice that they will not longer act for him, and have their fees settled to that time.^ An attorney jointly employed by a party has been restrained by injunction from becoming the attor- ney of the opposite party.^ § 252. Change of attorney in the United States. — The authority of an attorney under the general retainer does not ex- pire until judgment has been perfected, and sometimes not then. It is a consequence of this that the authority cannot be taken away by a change of attorney, after he has once appeared, unless a notice is given to that effect. This is usually done by a writ- ten consent, obtained from the former attorney, that another, who is named in the writing, be substituted in his stead, upon filing which, and giving notice of it, or serving a copy of it, or both, the change is effected. Should this consent be not obtain- able, the change must be made by a judge's order, calling upon the attorney (as in the English practice) to show cause why the other should not be appointed for the party instead of the orig- inal attorney. This order, it appears in England, need not be served upon the opposite party, but upon the attorney sought to ,be removed, and it seems there to be a matter of course to make ■it absolute upon payment of costs.* In New York, it has been said in chancery ^ that " the right of a party to change his solic- itor at pleasure is never disallowed, unless it appears that the change would deprive the solicitor previously appointed of his 1 Colegrave v. Manley, 1 Turu..& E. 401. 2 Cook V. Rhodes, Ig Ves. 273; 3 Ves. & B. 177. 8 Cholmondeley v. Clinton, 19 Ves. 261. 4 Wood V. Plant, 1 Taunt. 44; Langley v. Stapleton, Barnes, 40; Macpherson i'. Rorison, Doug. 217. 5 Munford v. Murray, Hopk. 369. § 252 AUTHORITY AND POWERS. 435 rights, or would in some manner unduly embarrass the course of justice in the cause. Upon these general reasons it is an es- tablished practice that a party who desires to change his solic- itor must obtain an order of the court for that purpose, and the appointment of a new solicitor, to take the place of one who is acting legitimately, is not effectual until the substitution is al- lowed by the court. When a solicitor is appointed to take the place of one who is discharged by his client, the practice of the court (of chancery) has uniformly been to obtain an order allow- ing the substitution." When a rule for the change of an attor- ney is necessary, as it is designed not only for the benefit of the attorney, but for the sake of the opposite party also, it cannot be dispensed v^ith by any arrangement between the client and his attorney. If he has acted at all as the attorney in the case, though the proceedings have not gone far enough for his name to appear on the record, as where he has merely received the summons and taken out an order for time, or to set aside pro- ceedings as irregular, there must be a rule.^ The attorney may be changed upon his own consent, but the consent must be filed or an order entered, substituting in his place the new attorney, and notice of the order must be served upon the opposite attorney.^ If an attorney is not properly sub- stituted, his acts are to be disregarded, and the opposite party is bound to consider the former attorney as still employed.^ 1 May V. Pike, 5 Dowl. O. S. 667 ; 4 Mees. & TV. 197 ; 2 London Jurist, 597 ; Stew- art V. Common Pleas, 10 Wend. 597. 2 Kreclder v. Thaule, 49 How. Pr. 138; Anon. 7 Mad. 50; Eyland v. Noukes, 1 Tavint. 342; Robertson v. McClellan, 1 How. 90; Dalou v. Lewis, 7 How. 132. 8 Kreckler v. Thaule, 49 How. Pr. 138; Jerome v. Bowan, 1 Wend. 393. Where solicitors had incurred costs for a client, and before any sum had been paid to them on account of such costs, another tirm of solicitors entered a second ap- pearance for the same client, on an application made on behalf of the first firm, the court made an order setting aside the second appearance until the costs were paid, and condemned the defendant in the costs of the motion. (The Oneiza, 4 L. E. Ad. & E. 36.) In the United States, the manner of change and substitution is frequently reg- nlated by statute. Thus, in California the attorney in an action or special pro- ceeding may be changed at any time before the judgment or final determination, as follows :' Upon his own consent, filed with the clerk, or entered upon the min- utes ; upon the order of the court or judge thereof ; upon tlie application of the client, after notice' to the attorney. When an attorney is changed, written notice of the change and of the substi- tution of a new attorney, or of the appearance of the party in person, must be given the adverse party; until then he must recognize the former attorney. When an attorney dies, or is removed or suspended, or ceases to act as such, 436 AUTHORITY AND POWERS. §§ 253-4 § 253. Change of attorney after judgment. — In conse- quence of the general rule, (subject, however, to qualifications) that the attorney's authority under his general retainer termin- ates with the entry of judgment, any proceeding subsequent to the judgment, either to enforce, discharge, or vacate it, may be taken by another attorney without any regular substitution. A new attorney may therefore, without any order to change, sue out execution,! enter satisfaction on the roll,^ or bring an appeal.^ Where a writ of error was brought by the opposite party, it was held that as the authority of the attorney for the successful party in the court below ceases with the judgment, the rule to join in error ought to have been personally served on the de- fendant, either by delivering it to him, or by leaving it at his dwelling-house, or by some other mode of service which the court might specially direct under the circumstances.* But un- der most modern statutes and codes of civil procedure a notice of appeal or notice of motion for new trial may usually be served upon the old attorney, if no other has been substituted, and it will be sufficient without service on the party. § 254. Effect of the substitution upon the attorney changed. — After an attorney has been changed, there are En- glish cases which hold that the court will not restrain him from o acting for the opposite party, unless the change has been pro- cured by his own act, and some confidential communication made to him by the first party who employed him, the disclosure of which might be prejudicial to that party .^ But in these cases a party to an action for whom he was acting as attorney must, before any further proceedings are had against him, he required hy the adverse party, by written notice, to appoint another attorney or to appear in person. (Code Civil Proced- ure Cal. sees. 284^-286. See N. Y. C. C. P. sees. 517-519; 16 Cal. 436; 33 Cal. 20S-, 6 Cal. 55.) 1 Tipping V. Johnson, 2 Bos. & P. 357; Thorp v. Fowler, 5 Cowan, 446. See 4 Lond. Jur. 805. 2 Marr v. Smith, 4 Barn..& Aid. 466. 3 Batclielor v. Ellis, 7 T. R. 337; Hussey v. Welby, Sayre, 218; Beudernagle v. Cocks, 19 Wend. 151; Gonnigal v. Smith, 6 Johns. 106; Cocks v. Brewer, 11 Meea. & W. 51; 2r)owl. N. S. 759; 7 Jur. 218; Burgess v. Abbott, 6 Hill, 135; Dearborn V. Dearborn, 15 Mass. 316. * Clement v. Grossman, 8 Johns. 287; Hardembergh v. Thompson, 1 Johns. 61. 6 Johnson v. Marriott, 2 Cromp. & M. 183; 2 Dowl, O. S, 343; Grissel v. Peto, 9 Bing. 1; Cholmondeley v. Clinton, 19 Ves, 261; Coop. Ca. 80; Bricheno v. Thorp, Jac. 300; Beer v. Ward, Jac. 77. § 255 AUTHORITY AND POWERS. 437 the attorney did not withdraw from the particular suit and ac- cept a retainer from the other side ; but where, in the course of other business or in other suits, he had obtained a knowledge of matters connected with the suit in question. These cases do not apply to the particular suit, and as to it, the rule also has been laid down that, lest any temptation should exist to violate professional confidence, or to make any improper use of the in- formation which an attorney has acquired confidentially, as well as upon principles of public policy, he will not be permitted to be concerned on one side of proceedings in which he was orig- inally in a different interest, even though his former client makes no objection, and though long discharged and feeling that he has forgotten the nature and purport of the communications he, had received from the former client.-' § 255. Withdravral of attorney. — Another mode of ter- minating the relation is by the withdrawal of the attorney ; but when he is of record he can only withdraw from a case by leave of the court, and in any event he must on withdrawal notify the opposing counsel. If he does not, service on him is good, and he is responsible to his client if he pays no attention to it.^ An attorney who undertakes the conduct of an action im- pliedly stipulates to carry it to its termination,^ and is not at liberty to abandon it without, reasonable cause and reasonable notice.* If he abandons it without, he may be liable for the consequences, even though proper funds, were not provided for the conduct of the suit;^ but the attorney may give such notice on any reasonable cause, as the want of funds; a dissolution of partnership, or his retirement from business, or the insolvency of his client, and may then retire and recover his costs for what he has done.^ 1 Lessee of Flynn v. Marsliall, 1 Irish Law 11. 0. S. 59; Hutchins v. Hutclilns, 1 Hogan, 315; Keon v. Nesbit, 1 Sausse & S. 3R5; Waller v. Fowler, Ibid. 369. 2 U. S. V. Curry, 6 How. 100. See Martinics v. Johnson, 21 jST. J. L. ; 1 Zab. 239; Boyd V. Stone, 5 Wis. 240; Bach v. Ballard, 19 La. An. 487. » Harris v. Osbourne, 2 Car. & M. 629; Eothery v. Munnings, 1 Barn. & Adol. 17; Whitehead v. Lord, 7 Ex. 691; 21 Law J. Ex. 239. * Nicholls V. Wilson, 11 Mees. & W. lOfi; 12 L. T. N. S. 266. 5 Mordecai v. Solomon, Sayers, 173; Menzles v. Rodrigue3,l Price, 92. 6 Eowson V. Erie, 1 Moody & JI. 538; Vansandan v. Brown, 9 Bing. 402; 2 Moore & S. 543; Wadsworth v. Marshall, 2 Cromp. & J. 665; Hoby v. Built, 3 Barn. & Adol. 350; 2 Johns. 296. 438 ^ AUTHOEITT AND POWERS. § 256 » §, 256. Death of attorney or client. — The relation is also totally dissolved by the death of the client/ and by the death or absolute and permanent incapacity of the attorney, as in the case of insanity and disbarring.^ Upon the death of the attorney in a cause, notice must be given to the opposite party of the ap- pointment of a new attorney before the latter can proceed.^ In ordinary cases, an attorney has a right to consider his em- ployment as continuing to the end of the litigation, unless dis- missed by his client.'' Where a party litigant dies after verdict, the authority of his attorney to act for him is thereby determ- ined, and he can neither give nor receive notices.^ The personal representatives must be brought in and the authority renewed, and due notice thereof given. So the authority of an attorney to receive from the sheriff money collected on an execution in favor of his client, is revoked by the death of his client. The sheriff may retain such money till demanded by the personal representatives of the deceased, and an order of the court that the sheriff pay over the money to the deceased party or his at- torney should be enjoined on the application of the sheriff.^ The death of the party revokes the appointment of the attor- ney. The attorney of the ancestor does not become the attor- ney of the heirs without a new appointment,'^ and service, where iGleasont). Dodd, 4 Met. Mass. 333; Putnam o. Van Buren, 7 How. Pr. 31; Beach v. Gregory, 2 Abb. Pr. 2*; Balbi v. Duret, 3 Edw. 418; Eisley v. Fellows, 10 111. 531; Judson v. Love, 35 Gal. 463; Whitehead v. Lord, 7 Ex. 691. 2 "Wharton on Agency, sees. 108, 634; Lovegood v. Dymond, 1 Taunt. 669; Chol- mondeley v. Clinton, 19 Ves. 272; Johnson v. Marriott, 2 Cromp. & M. 183; Carver V. United States, 7 Ct. of CI. 499; In re Paschal, 10 Wall. 483; Wells v. Hatch, 43 jST. H. 246; Hazlett v. Gill, 5 Eobt. 611 ; Wolf v. Trochelman, 5 Ibid. 611 ; Faust v. Repoor, 15 How. 570; Hunt's Est. 1 Tuck. 55; Gibbons r. Gibbons, 4 Har. (Del.) 105; Glauville, lib. XI, 613; Walcott v. Vouchee, 3 Bing. 423; Davies v. Lowndes, 3Com. B. 808. 3 Eylaud v. Noakes, 1 Taunt. 342. See Ashley v. Brown, 1 Lown. M. ^: P. 451; 15 Jur. 399; 19 Law J. Q. B. 477; Lord v. >\'ardle, 3 Com. B. 295; 15 Law J. C. P. 259. . Gilby, 8 Beav. 602: Ezart v. Lister, 5 Beav. 585; 12 Law J. Ch. N. S. 10. A practice in vogue in some localities, but it is to be hoped by no means an extended on6, is tliat of counsel in a cause discussing privately, witli the judge ■who lias- tried it or is to try it, the questions involved. All argument in a case should be in court, or wherever the matter is heard; and ex parte argument out- side is as unfair to the opposite party as it is contemptible. The attorney "who attempts this should he considered as in contemj)t, and the judge who allows it is a promising subject for a legislative impei^chment. I am happy in this view to be fortified by the authority of Lord Chancellor Cottenham of England, who had occasion to comment on this i^ractioe as follows ; ' ' Eoery private communication to a judge for the purpose of influencing his decision upon a matter publicly before him, always is and always ought to be reprobated; it is a, course calcu- lated, if tolerated, to divert the course of justice, and is considered, and ought more frequently than it is to be treated as what it reall.y is, a high contempt of court. It is too often excused on account of tlie station in life of the parties," etc. (In re Dyce Sombre, 1 Macn. & G. 122.) 1 "Williams v. Reed, 3 Mason, 401, per Story J. 2 Thwaites r. Mackeraon, 3 Gar. & P. 311; M. & M. 199. 8 Hopkinson v. Smith, 7 Moore, 237; 1 Bing. 13, < Harvey v. Mount, 8 Beav. 439. §§ 262-3 DUTIES AND DEALINGS. 445 tlons for the trial or hearing, by procuring the production of the requisite documents and the necessary witnesses.' § 262. Duties as to notifying client and rendering ac- counts. — The attorney should notify the client of any circum- stances requiring action on his part. Whatever is important for the client to know, it is the duty of the attorney to communicate if he can. A failure to do so reduces his claim to compensation, and may be a ground for an action against him by his client.^ The liability to render correct accounts is one generally aris- ing from the character of an agent, but in the case of attorneys it is even more imperative. This liability may be at any time enforced against an attorney, and a court of equity may open accounts though many years have elapsed, and the vouchers have been given up.^ § 263. Collecting money — Statute of limitations. — It is the duty of an attorney who collects money to immediately give his client notice thereof, and await instructions. Unless such circumstances exist as amount to a waiver of demand, no action will lie against an attorney for money collected until a demand is made, or without the existence of such facts as amount to a waiver of the demand;* but in the absence of proof the law will presume notice and demand made in a reasonable time after the money is collected, and at that time the action will be deemed to have accrued. When the attorney by false representations conceals from his client the fact that he has collected the cli- ent's money, the cause of action does not accrue until the dis- covery of the fact. When the wrong of the defendant causes a 1 De Bouiigiiy v. Peale, 3 Taunt. 484; Keeoe v. Eigby, 4 Barn. & Aid. 202 2Hoopes V. Burnett, 26 Miss. 428; Jett v. Hempstead, 25 Ark. 462; Fox v. Cooper, 2 Q. B. 237. 8 In re Lee, Law Rep. 4 Ch. 43; Lewis v. Morgan, 3 Anstr. 769; 4 DowL 29; 5 Price, 42; 3 Youmge & J. 230. See Brown v. Pring, 1 Ves. Sr. 407; Newman v. Payne, 2 Ves. Jr. 199; Rosse v. Sterling, 4 Dowl. 442; Drapers Co. v. Davis, 3 Atk. 295; Abbey v. Fetch, 1 Younge & C. Ch. 258. An attorney intrusted with the collection of debts and receiving notes on third persons for collection, as collateral security for such debts, thereby becomes a trustee for both debtor and creditor, and a court of equity may compel him to account. (Scott's Admrs. v. Wickliffe, 1 B. Mon, 353.) 4 Voss V. Bachop, 5 Kans. 67; Taylor v. Bates, 5 Cowen, 376; 6 Cowen, 596; LiUie V. Hoyt, 5 Hill, 399; 4 Greenl. 532; 2 Pike, 402; 4 Ala. 494; 3 Barb. 584. 446 DUTIES AND DEALINGS. § 263 the delay, and not the laches of the plaintiff, he cannot take ad- vantage of his own wrong and plead the statute of limitations.^ In McDowell v. Potter, (8 Barr. 189) it was held that the statute of limitations against a claim on an attorney for money collected began to run from the time the client had knowledge or the means of knowledge that the money had been collected, and that the burden of proving such knowledge was on the at- torney, who stands in a fiduciary character, and before he can be permitted to avail himself of this defense he must prove that he has performed his duty ; and that duty is to give his client notice of the fact that he has collected the money.^ The attor- ney, therefore, cannot be protected by the statute until demand. But in another case,^ a suit against an attorney for neglect of duty, six months' failure to commence a suit against a debtor in failing circumstances seems to have been held an unreason- able time ; and where the duty is immediate, as in the collection of money, the right of action accrues, and the statute begins to run from the time of the attorney's receipt Qf the money, even though he gives no notice of its collection, the law deeming it gross negligence on the part of a creditor to neglect to make in- quiry for six years, unless the attorney has been guilty of con- cealment or of some act to put his client off his guard. Such is the modern doctrine qualifying some previous cases.* There is no difference between the nature and extent of lia- bility of an attorney and that of any other agent, in respect to moneys collected by him for his principal and claimed by a third person. So, where an attorney, after notice from plaintiff that she claimed moneys collected by him in an action, paid it oyer to his client, it was held that plaintiff was entitled to recover of the attorney the amount so paid over. The attorney might pro- tect himself by demanding security of the claimant or client, and pay to either upon receiving indemnity.^ Where an attorney procures money to be advanced by a third 1 Voss V. Bachop, supra; Cutting «. Way, ,20 N. H. 120. 2 Voss V. Bachop, 5 Kan. 67. See Stafford v. Richardson, 15 Wend. 305. « Livingston v. Cox, 66 Pa. 360. ^Rhines v. Evans, 66 Pa. 195. See McDowell v. Potter, 8 Barr. 189; Camp- hell's Admr. v. Boggs, 12 Wright, 524; Downey v. Garard, 12 Harris, 52. 6 Sims V. Brown, 6 Thomp. & C. 5; Langley v. Warner, 1 Sand. 209; In re Bleakley, 5 Paige, 311; Marvin v. El wood, 11 Paige, 365. §§ 264-5 DUTIES AND DEALINGS. 447 person in the prosecution of an action, without attempting to pledge the credit of his client therefor, the attorney alone is re- sponsible to the third party.i In a suit against an attorney for funds collected on a note, the pi-operty of an estate payable to the administrator or bearer, the attorney cannot plead that such note had been assigned to him by the administrator in payment of a debt owed by the administrator to the attorney .^ § 264. Payment of money. — The attorney must faithfully pay over to his client money received on his behalf. One usual mode of enforcing this duty is by summary application to the court. He may also be proceeded against by action for money had and received; but according to some cases not until after demand or direction to remit,^ even although he may have de- clared he intended to retain the money, unless such declaration be made to the agent of the plaintiff or come to his knowledge.* § 265. Sales of real estate — employment by both par- ties. — It occasionally happens that an attorney who has effected an arrangement for a sale of property, and is- known to both parties, becomes employed by both in the transaction ; employed by both and with the knowledge of both, prima facie, no great degree of turpitude attaches to his thus acting. But the prac- tice is ojectionable, and may lead to serious complications and .embarrassments. Sugden, in his Vendors and Purchasers, thus criticizes such action : ® " This practice has been discounte- nanced by the courts,^ and is often productive of the most se- rious consequences ; for it not rarely happens that there are in- ■cumbrances on an estate which can be sustained in equity only, and which will not bind a purchaser who obtains the legal es- tate, unless he had notice of them previously to completing his purchase. Now, notice to an agent, although one concerned for both parties, is treated in equity as notice to the purchaser him- self ,'^ and therefore, if the attorney know of any equitable in- 1 Bell V. Mason, 10 Vt. 509. 2 Bledsoe v. White, 42 Tex. 130. 8 Taylor v. Bates, 5 Cowen, 376; Lillie v. Hpyt, 5 Hill, 395. * Eathbun v. Ingalls, 7 Wend. 320. s Vendor and Purchaser, p, 7, ed. 11. , 6 6 Ves. 631«. T Franklin v. Cothouse, 3 Swanst. 301. 448 DUTIES AND DEALINGS. § 266 cumbrance, the purchaser will be bound by it, although he him- self was not aware of its existence. And by these means a pur- chaser may even deprive himself of the benefit to be derived from the estate lying in a register county ; the register may be searched and no incumbrance appear ; yet if the attorney have notice of any unregistered incumbrance, equity will assist the incumbrancer in establishing his demand against the purchaser. Another powerful reason why a purchaser should not employ the vendor's attorney is, that if the vendor be guilty of a fraud in the sale of the estate to which the attorney is privy, the pur- chaser, although it be proved that he was innocent, will be re- sponsible for the misconduct of his agent.^ In one case,^ a pur- chaser lost an estate for which he gave nearly ^8,000, merely by employing the vendor's attorney, who was privy to a fraudu- lent disposition of the purchase-money." So the attorney may be liable to the purchaser for negligence or deceit, if the purchase is completed ; ^ and in the next place, he may be liable to the vendor if the purchase fall through by reason of his disclosing to the proposed vendee defects which he has discovered as attorney for the vendor.* In a case where a solicitor acted for both parties in the matter of a voluntary set- tlement, which was set aside for undue influence, in a suit in which the solicitor was made defendant, the court, though exon- erating him from culpability in the matter, made him bear his own costs, because he had not acted with proper prudence.^ There is the further objection arising from the privilege of pro- fessional communications, either in the application of the rule, or where they are not privileged.^ § 266. VThat the attorney undertakes in making pur- chases. — An attorney in a purchase or a mortgage transaction undertakes to investigate only the legal requisites of a title, and 1 Bowles V. Stewart, 1 Sclioales & L. 227. 2 Doe V. Martin, 4 T. E. 39; Hicks v. Morant, 3 Younge & J. 286; 2 Dow & C. 414. See Taylor v. Blacklow, 3 Bing. N. C. 235. 8 1 Ves. 96; 6 Ibid. 193; Burroughs v. Lock, 10 Ves. 470; Bowles v. Stewart, 1 Schoales & L. 227. * Taylor v. Blacklow, 3 Bing. N. C. 235. 6 Harvey v. Mount, 8 Beav. "439. 6 Perry «. Smith, 9 Mees. & W. 681; Shore v. Bedford, 12 Law J. Com. P. 13S. § 267 DUTIES AND DKALINGS. 449 not its value.i He is to see that the security is sufficient in point of law.^ But where the attorney is employed to invest the money and find the proper security in point of value, a different rule prevails.^ Where a transaction in which an attorney is en- gaged creates a case of combined agency and trust, he may be liable for loss like an ordinary trustee.* A statute providing that no trust shall result in favor of the party furnishing the consideration for a purchase in the name of another, does not apply to a conveyance obtained by fraud. And so, where an attorney is employed to purchase tax-titles and other outstanding claims against his client's lands, to strengthen the title, which is defective of record, the client furnishing the means, and such purchases are made at the sug- gestion of the attorney in his own name, a conveyance to a third person, by the attorney, in violation of the professional confidence reposed in him, will not be protected by such a statute. A consent that the conveyances should be taken in the attor- ney's name having been obtained by him, by means of the con. fidence reposed in him as an attorney, for the fraudulent pur- pose of appropriation, is void.^ § 267. Duties of attorneys in investigating titles. — The first duty of the purchaser's attorney on receiving the absti:act of title is to read carefully through it, in order to see whether, on the face of it, a proper title appears to be disclosed, and if 1 Green v. Dixon, 1 Jur. 137. 2 Howell V. Young, 5 Barn. & C. 259; Hayne v. Rhodes, 8 Q. B. 342. 3 Dartnell v. Howard, i Barn. & C. 345. * Craig V. "Watson, 8 Beav. 427. It is the duty of an attorney engaged in the settlement of an intricate trans- action which his client is called on to release or confirm, to inform himself of the history of the transaction and the nature of the accounts. (De Montmo- rency V. Devereux, 8'Clark & F. 228.) "Where an attorney of an injured and aged trustee advised him to commi a breach of trust and transfer the trust fund to himself, he was ordered to show cause why he should not be stricken off the rolls. (Goodwin v. Gosnell, 2 Coll. 457.) It seems almost unnecessary to suggest that the attorney for either party in a purchase or negotiation should cautiously abstain from seeking to influence the client of the other behind his counsel's back. As, however, such a case once occurred, it may be proper tb state that such a course will possibly lead to the con- tract's being rescinded by the court. (Bent v. Armistead, 2 Keep, 221.) 6 IJnsley v. Sinclair, 24 Mich. 380. A. & C— 29. 450 DUTIES AND DEALINGS. § 268 the abstract is properly framed, which a competent person can soon ascertain. It is then his duty to carefully examine every deed or instrument constituting or affecting the title. The ab- stract should be compared with the original deeds if accessible ; and the purchaser's solicitor should, it has been held in England, search for any incumbrances upon the property, such as judg- ments, etc., as he has been held liable to his client for any omis- sion on this point.^ And it has been held that if the purchase falls through for defects of title, his client will be entitled to recover from the vendor the costs of the searches.^ § 268. Dealings between attorney and client. — Dealings between attorney and client are carefully and jealously regarded, particularly by courts of equity, to protect the client even from his own acts, if done under the influence Or supposed ascendancy which the attorney may have over him.^ A court has refused to hear it argued that an attorney could take a mortgage from his client to secure costs to be incurred.* Transactions ordina- rily not open to the slightest objection have been declared in- valid as against a client. Whatever hardship may arise in par- ticular cases, the law to prevent public mischief, and to protect the client, declares that attorneys shall take no benefit under such circumstances. Not until the relation has completely ceased is the influence supposed to have completely ceased. Not until then is the attorney safe in dealings outside of his profes- sional duty. Not until then can the client even exhibit his sen- erosity with safety to his counsel ^ in the way of gifts or extra emoluments. This jealous care and scrutiny over such transac- tions extends to all gifts, conveyances, and contracts by the cli- ent, and all securities given by him pending the relation.*' 1 See Brooks v. Day, 2 Dick. 572; Poresliall v. Coles, Peake Ad. Cas. 286; Green V. Jackson, Ibid.; Hart v. Frame, 6 Clarli; & F. 209. 2 Hodges V. Litchfield, 1 Blng. N. C. 499. 8 Newman v. Payne, 2 Ves. 201 ; 1 Ball & B. 17. * Jones V. Tripp, 1 Jacob, 322; Pitcher v. Rigby, 9 Price, 83. 5 Wells V. Middleton, Cox, 112; i Prown Pari. C. 26, 2i5; Wright i. Proud, 13 Ves. 138; Wood v. Downs, 18 Ves. 127; Oldham v. Hand, 2 Ves. 259; Bellew v. Eussell, 1 Ball & B. 104; 1 Madd. 314. Gray v Emmons, 7 Mich. 533. An attorney must show that the client acted freely and understandingly. If it be claimed that an instrument executed by the client, during the professional relation, was intended to provide a remuuer- § 268 DUTIES AND DEALINGS. 451 When the relation of attorney and client exists, and a security is taken by the former from his client, the presumption is that the transaction is unfair, and the onus of proving its fairness is upon the solicitor.^ An agreement made by a client with his attorney after the latter has been employed in a particular busi- ness, by which the original contract is varied, and greater com- pensation is secured to the counsel than may have been agreed upon when first retained, is invalid, and cannot be enforced.^ ation for past services, then the plaintiff must prove sucli services, that there existed at the time of giving it at least a moral obligation to pay, that the in- strument was fully understood by the person executing it, and was made in pursuance of, and in accordance -svith, a well-conaidered, definite, and settled purpose, (Jennings v. McConnell, 17 111. 148; Brock v. Barnes, 40 Barb. 521; Howell V. Eansom, 11 Paige, 538.) The foundation of the rule is the influence arising from the relation: so long, therefore, as the influence exists, the rule of course applies. " It is apparent that in m^any cases the influence acquired dur- ing the existence of the relation may extend more or less after the period of its termination. The authorities show that when this is the case the transaction will be scrutinized with the same jealousy as if the relation had continued. In the language of Lord Eldon in Woods v. Downes, 13 Ves. 119, ' it is not denied in any case that if the relation had completely ceased — if the influence can be supposed also rationally to cease — a client may be generous to his attorney or counsel as to any other person, but it must go so far.' " So where a conveyance of land has been executed from the client to the attor- ney under the influence of confidential relations, even after the relation of attorney and client had ceased, the position of the case is precisely the same as if the deed had been given before the litigation was ended. "It was not exe- cuted as a gift, but as a compensation for professional and other services pre- viously rendered. In such cases the courts will not set aside a transaction if it appears clearly to have been in all respects just and fair, or if the action of the client seems to have been entirely voluntary, i. e., without any disturbing influ- ence growing out of the relation. But such an influence is uniformly suspect- ed. It is not necessary for the client to establish it by proof aliunde: the pre- sumption is in his favor. The law presumes such influence from the relation between the parties. This presumption would no doubt be repelled in a case where the court could see from the character and conduct of the parties that there was no reason to impute to tlie attorney any undue ascendency over the mind of his client." A deed or instrument given in such case as a compensation for services ren- dered will be allowed to stand as security for what is actually due. (Mason v. King, 2 Abb. P. N. S. 322.) 1 Evans v. Ellis, 5 Denio, 640; Newman v. Payne, 2 Ves. 199; Walmesley v. Booth, 3 Atk. 25; Montesqieu v. Sandys, 18 Yes. 313; Stockton v. Ford, 11 How. 247; Starr v. Vanderheyden, 9 Johns. 253; Howell v. Eansom, 11 Paige, 538; D'Eose V. Fay, 4 Edw. Ch. 40; Lewis v. J. A., Ibid.; Berrien v. McLane, 1 Hoff. Ch. 424; Miles «. Irvin, 1 McCord Ch. 524; Eose v. Mynell, 7 Yerg. 30; Bibb v. Smith, 1 Dana, 482; Smith v. Thompson's Heirs, 7 B. Mon. 308; Jennings v. Mc- Conhell, 17 111. 148; Mills v. Mills, 26 Conn. 213, Kisling v. Shaw, 33 Cal. 425; Nesbitt V. Lockman, 34 N. Y. 167. 2 Lecatt V. Salle, 3 Port. 115. ' 452 DUTIES AND DEALINGS. § 269 An' attorney ip all transactions with his client is regarded as acting in a fiduciary capacity.^ The rule applicable to transactions between an attorney and client, such as contracts, sales, gifts, etc., is, that the attorney who bargains in a matter of advantage to himself with his client is bound to show that the transaction is fair and equitable ; that he fully and faithfully discharged his duties to his client, with- out misrepresentation or concealment of any fact material to the client ; that the client was fully informed of his rights and in- terests in the subject-matter of the transaction, and the nature and effect of the contract, sale, or gift, and was so placed as to be able to deal with his attorney at arm's length.^ § 269. Transactions upheld. — A contract entered into be- tween a client and an attorney in which the attorney undertakes to resist a motion for a new trial, and to receive for his services a portion of the land, is binding on the client, if no concealment or improper practices were to be used, or were in fact used by the attorney, in performing the contract on his part ; and a court of equity will not refuse to enforce specific performance of such a contract on the ground of want of mutuality.^ If an attorney at law is consulted as to' the legal effect of a power of attorney given to the one who seeks his advice, and is directed as a conveyancer to prepare a deed of land to be exe- cuted by the one who gave the power to the attorney in fact, and the attorney at la^ performs the duty devolving on him by the employment, and in so doing derives no information from his employer relative to the land, and the parties refuse to execute the deed, these facts do not make the lawyer, the trustee of his employer if he afterward buys the land.* Where an attorney recovers judgment in his own name on a note or claim sent to him for collection, and the amount of which is made out of property of the defendant and paid over to the 1 Heffren v. Jayne, 391nd. 463; McCormick v. Malin, 5 Blackf. 509. 2 Kisling V. Shaw, 33 Cal. 425; 1 Story Eq. Jur. sec. 310; Gibson v. Jeyes, 6 Ves. 266; Newman!). Payne, 2 Ves. 199; Howell v. Ransom, 11 Paige, 538; Evans V. Ellis, 5Denio, 640; Ford v. Harrington, 16 N. Y. 288; Wlielan v. Whelan, 3 Cowen, 537; Cuts )•. Salmon, 12 Eng. L. & Bq. 316; Greenfield Estate, 14 Pa. 490; Wright V. Proud, 13 Ves. 137; Hunter v. Atkins, 3 Mylne & K. 113. 8 Ballard v. Cars* 48 Cal. 74. ■t Torler ». Piickhnm, 44- Cal. 204. § 270 DUTIES AND DEALINGS. 453 client, the attorney, upon being subsequently compelled to re- fund the money so paid to the client to a party having a prior lien on, or right to, the property sold to satisfy the judgment, may recover back from his client the money so collected and paid on the judgment ; but in such a case, if the judgment ob- tained in the name of the attorney has been satisfied of record, the attorney, in order to recover, must make the client whole by showing that the satisfaction of the judgment has been set aside, or that there is, in some form, recourse against the original de- fendant, within the power and control of the client.^ A deed by a client to his attorney for the consideration of af- fection and friendship, and also for a sum of money, though not one third the value of the land conveyed, will not be set aside on the ground of blind confidence on one side, and undue influ- ence on the other, there being no evidence of imbecility or inca- , pacity in the grantor, nor of fraud or imposition by the grantee.^ § 270. Transactions not upheld. — An attorney who pro- cured a judgment for his client which he knew to be invalid, and afterward suffered and assisted him to purchase the prop- erty upon execution sale under such void judgment, is estopped from afterward acquiring title to the same property from the judgment debtor.^ A conveyance intended by both parties to hinder and delay the creditors of the grantor cannot, even as against the grantor, be sustained in favor of the grantee or his assignee with notice, by reason of the fact that the grantee was the attorney and counsel of the grantor, and as such ' advised and received the conveyance. Attorney and client, when parties to such a trans- action, are not regarded in pari delicto ; but the client will be relieved if it can be done without injury to an innocent purchaser.^ An attorney having taken an infant, entitled when of age to property, advanced moneys and taken acknowledg- ments from him that they were for necessaries, and within a ■month after his coming of age obtained, without the interven- tion or advice of any other friend on the infant's part, a bill in 1 Seevers v. Hamilton, 6 Iowa, 199. 2 Wendell v. Van Eensselaer, 1 Johns. Ch. 344. 3 Phillips V. Blair, 38 Iowa, 649. But see Learned v. Haley, 34 Cal. 608. * Goodenough v. Spencer, 15 Abb. Pr. N. S. 248. 454 DUTIES AND DEALINGS. § 271 blank at which time all the vouchers were given up or destroyed, the relation was put upon the footing of guardian and ward, and it was held he could not conclude the defendant by such an acknowledgment. So a purchase of a bankrupt's estate by the solicitor of a commission was set aside, though he gave the full value for it at a public auction ; Lord Eldon declaring that he would set aside all purchases made by persons having a confi- dential character, " however honest the circumstances." An attorney advising the devise of property to himself on the pretense that he would only make use of it for another, but intending, nevertheless, to appropriate it for his own use, is guilty of a gross fraud and breach of confidence. ^ A purchase by the attorney of property sold under a judgment obtained by him for a price less than its amount, constitutes the attorney the implied trustee of his client, and the vendee of the attorney may also: be fixed with the implied trust.^ Where the relation of client and attorney exists, and the at- torney, at the instance of his client, purchases a note which is secured by mortgage on the land of the client at a considerable discount, the latter will be entitled to the benefit of the pur- chase, although the attorney may have bought it for himself.^ An attorney will not be relieved from the obligations imposed upon him by reason of his confidential relation in dealing with his client, in reference to property involved in that relation, merely from the fact that the negotiation between them is car- ried on through a third person, the latter being interested at the time with the attorney in the transaction.* § 271. Conflicting interests. — ',' An attorney cannot accept interests conflicting with those of his client. Any deviation in this respect may expose him, not only to an action for damages on the part of his client, but to discipline on the part of the court.^ An attorney cannot act in a suit in which he is employ- 1 Hooker ti. Axford, 33 Mich. 453. ^ Barrett v. Bamber, 9 Phila. 202. 3 McDowell V. Milroy, 69 111. 498. See McDonald o. Moore, 34 Tex. 384. * Zelgler v. Hughes,, 55 111. 288. 5 Wharton on Agency, sec. 593; Com. v. Gibbs, 4 Gray, 146; Price v. Grand Bapids E. E. 18 Ind. 139; Gaulden v. State, 11 Ga. 47; Wilson v. State, 16 Ind. 392; Herriok o. Catley, 1 Daley, 512; .30 How. Pr. 208; Sherwood v. E. E. 15 Barb. 650; Howell v. Baker, 4 Johns. Ch. 118; McArthur «. Fry, 10 Kan. 231- § 271 DUTIES AND DEALINGS. 455 ed as commissioner to take testimony ; ^ nor as solicitor for the receiver for whose appointment he moves ; ^ nor as master to execute a decree ; ^ nor as administrator of an estate ao-ainst which he is pressing a hostile claim.* But by mutual consent an attorney may act as umpire for both parties, in the absence of fraud." ^ As a rule, an attorney cannot represent both sides, even though the proceedings be amicable ; nor can he, after having been retained by one side, obtain, under such circumstances, compensation for his services from the other.^ Still, sometimes in chancery suits the same solicitor may be concerned for sev- eral parties, some of whom may be plaintiffs and some defend- ants. But a solicitor who is concerned for two parties having distinct interests, binds each client by notices which he receives on behalf of the other ; and the courts will often deal different- ly in such cases than they would under ordinary circumstances.^ In cases of loans, grants of annuities, family settlements and arrangements, it is sometimes the interest and wish of all parties that one solicitor should act. But when anything re- mains open in the shape of negotiation, it is more prudent to call in a second solicitor.^ Communications made to the solicitor in such cases are, generally speaking, not privileged.^ When an attorney has been employed in a cause, and is after- ward discharged by his client, not on the ground of misconduct, the court will not restrain him from acting for the opposite party, unless it clearly and distinctly appears that he has obtained in- formation in his former character which would be prejudicial to the cause of his former client to communicate.^" If an attorney Johnson v. Marriott, 2 Oromp. &M. 183; 2 D. P. C. 313; Grissell v. Peto, 2 Moore & S. 2; 9 Biug. 1; Masonic Co. v. Nokes, 22 L, T. N. S. 503; Mare v. Lewis, 1 I. E. Eq. 219. 1 Taylor v: Bank, 14 Ala. 633. 2 Warren v. Sprague, 4 Edw. N. Y. 416. s White V. Haffaker, 27 111. 349. 4 Spinks V. Davis, 32 Miss. 152. 6 Joslin V. Cowee, 56 N. Y. 626. » Herriok v. Cotley, 1 Daly, 512; 30 How. Pr. 208; Sherwood v. Saratoga E. E Co. 15 Barb. 650; Valentine v. Stewart, 15 Cal. 387. See ante, sec. . ' Partington v. Bailie, 5 Sim. 667. 8 Adamson v. Evitt, 2 Euss. & M. 66; Har-vey v. Mount, 8 Beav. 439. 9 Perry v Smith, 9 Mees. & W. 6S1 ; Shore v. Bedford, 12 Law J. Com. P. 138. 10 Johnson v. Marriott, 2 Cromp. & M. 183; 2 D. P. C. 343; 4Tyr. 78; Grissell V. Peto, 2 Moore & S. 2; 9 Bing. 1. 456 DUTIES AND DEALINGS. §§ 272-3 is acting for his client on a particular occasion he may throw off that character, and exercise his independent rights.^ It is an established rule that the attorney shall not in any way whatever, in respect of any professional transactions between him and his client, make gain or profit for himself at the expense of his client, beyond the amount of his just and fair professional remuneration. He must account to his client for all profits.^ He cannot, as a rule, act adversely to his client's interests ; nor use the knowledge acquired confidentially in trafficking with his client's interests.^ § 272. Mixing funds. — Attorneys are liable for any loss a client may sustain by their client's money not being immediately handed over when received. The failure of a bank into which it was paid in the attorney's own name makes the attorney lia- ble ; for, however hard this may be on the latter, it is a clear rule of law that if he mix up money belonging to his client with his own, he thereby renders himself the client's debtor.* Sums negligently paid out may be recovered back from the attorney.^ § 273. Purchase of client's property. — As a general rule, the attitude of the attorney toward his client prevents the former from purchasing his client's property, and at all events, without the most ample information being afforded to the client to place him on his guard.^ This rule is founded upon the ine- quality which is supposed to exist between counsel and client, the habitual exercise of power on the one side, and submission on the other, so that even without the exercise of any power beyond that which may be inferred from the nature of the transaction itself, the courts will presume and impute an undue influence.^ If the party will insist on mixing the character of 1 Austin V. Chambers, 6 Clark & F. 1. 2 Tyrrell «. Bank o£ London, 10 H. L. Cas. 26; 8 Jur. N. S. 849; 31 L. J. Ch. 369; 10 Week. R. 359: 9 L. T. N. S. 1. 3 Hatch V. Fogarty, 40 How. Pr. 492; S. C. 10 Abb. Pr, N. S. 147. * Robinson v. Ward, 1 Ryan & M. 274. See Knight v. Lord Plymouth, 3 Atk. 480; Eowthw. Stowell, 3 Ves. 656; Adams v. Claxton, 6 Ves. 226. 5 Harris v. Rees, 16 Week. R. 91. 6 Howell V. Baker, 4 Johns. Ch. 117; Miles v. Ervin, 1 McCord, Ch. 524; Rose V. Mynatt, 7 Yerg. 30; Leisenring v. Black, 5 Watts, 303; Berrien v. M'Laiu, 1 Hoff. Ch. 421; Hawley v. Cramer, 4 Cowen, 717; Carter v. Palmer, 8 CI & F 657. ' Carborne v. Barsham, 2 Beav. 76. § 273 DUTIES AND DEALINGS. 457 an attorney with that of vendor, he must, if the propriety of the contract comes in question, show that he had given the cli- ent all reasonable advice against himself that he would have given him against third parties.^ In all such transactions the most open and undisguised conduct on the part of the attorney is necessary, or they may be. set aside in a suit in equity.^ The transaction is viewed with suspicion, and the presumption is against the attorney,'^ and the rule is apj^licable to transactions with an attorney's managing clerk.* So long as the influence exists the rule applies, though the technical relation has ceased.^ A purchase by the attorney at law for the plaintiff in a judg- ment, of property sold under such judgment for a price less than its amount, constitutes the attorney the implied trustee of his client. Such a state of the record is constructive notice to the attorney's vendee, and fixes him also with the implied trust.® The general allegation that the defendant was the plaintiff's counsel, and undertook to conduct a suit for foreclosure of mort- gaged premises to a decree and sale thereof for the plaintiff's benefit, but that he bought it in his own name, sufficiently al- leges a trust which a court of equity will enforce against the defendant, by requiring him to convey the legal title to the plaint- iffs, upon being reimbursed his necessary expenses in procuring it, and on such other terms as the justice of the case requires.'^ Sales made and conveyances made in pursuance thereof, from clients to the attorneys, will be annulled unless shown to have 1 Montesquieu v. Sandys, cited in 3 Sugden's Vendors, 238; Edwards v. My- rick, 12 Law J. Ch. 52; 2 Hare, 60. 2 Abtey v. Fetch, 11 Law J. N. S. Oh. 124; 1 Y. & Coll. 258; Edwards v. Myrick, iupra; Wood v. Davis, 18 Ves. 120; Newman v. Payne, 2 Ves. Sr. 199; Lewis v. Hillraan, 3 House of Lords Cas. 607; Cutts u. Salmon, 21 L. J. Ch. 750; 4 De Gex & S. 123. ' "Whitehead v. Kennedy, 7 Hun. 230; De Rose v. Fray, 3 Bdw. 369; Sweeney v. King, 35 Eng. L. & Eq. 100; Evans v. Ellis, 5 Den. 640; Mason v. Ring, 3 Abb. Ap. Deo. 210; Brock v. Barnes, 40 Barb. 521; Ford v. Harrington, 16 N. Y. 285; Staleyf. Dodge, 50 111.43. < Poillon V. Martin, 1 Sand. Ch. 569. 6 Mason v. Ring, 3 Abb. N. Y. App. 210. 6 Barrett v. Bamber, 9 Phila. 202; In re The Taylor Orphan Asylum, 36 Wis. 534. See Trotter v. Smith, 59 111. 240; Alwood v. Mansfield, 59 III. 496. '• Case V. Carroll, 35 N. Y. 385; West v. Raymond, 21 Ind. 305; Lashley v Cas- sell, 23 Ind. 600; Eshleman v. Lewis, 49 Pa. 410; Annan v. Stout, 42 Pa. 114; Adams v. Fox, 40 Barb. 442; Leach v. Fowler, 22 Ark. 143; Zeigler v. Hughes, .55 111. 288; Warren v. Hawkins, 49 Mo. 137; Wheeler v. Williard, 44 Vt. 640; JBCamsher v. Kline, 57 Pa. 397. 468 DUTIES AND DEALINGS. § 273 originated in uberrima fide.^ So where a conveyance was made by a client to his attorneys in part consideration of excessive fees. The burden of proving the rectitude of the transaction is upon the attorney, and upon his failure to make such proof equity treats it as a case of constructive fraud.^ Purchases by an attorney from his client pending litigation have been held ab- solutely void,^ and to sustain any such transaction the most scru- pulous good faith must be proved to have been exercised.* It is not necessary to prove actual fraud on the part of the attorney. The latter cannot sustain a purchase from his client without showing that he communicated to such client everything necessary to enable him to form a correct judgment as to the real value of the subject of the purchase, and as to the propri- ety of selling for the price offered. And the neglect of the at- torney to inform himself of the true state of the facts, will not enable him to sustain a purchase from his client for an inade- quate consideration.^ But fraud will not be imputed in the pur- chase of real estate by an attorney at a sale under execution in favor of his client, when the latter has announced his inability to pay the costs and taxes, and has instructed his attorney to bid it off in his own name, to reimburse himself for advances.^ The same principle which prohibits trustees and public officers from buying property of which they have the management, at a sale thereof made and controlled by themselves, forbids an at- torney who manages a suit, and has a right to control to some extent the sale made by the commissioner, to become a purchaser at such sale. Particularly ought a purchase under such circum- stances to be regarded as invalid, when it results in a sacrifice of the property which might be prejudicial to the client and bene- ficial alone to tlie attorney who purchases ; but a contract which has been acted upon by both parties will not be disturbed after 1 Poison V. Young, 37 Iowa, 196; Harper v. Perry, 28 Iowa, 57; McCormick v. Malone, 5 Blackf . 509. 2 Jennings v. MeConnell, 17 111. 148; Dunn «. Becord, 63 Me. 17; Kisling v. Shaw, 33 Cal. 425; Howe!?). Ransom, 11 Paige, 539. 3 West V. Raymond, 21 Ind. 305. See Simpson v. Lamb, 40 Eng. L. & Eq. 59; Harper v. Perry, 28 Iowa, 57. 4 Judah )i. Trustees, 23 Ind. 272. 6 Howell V. Ransom, 11 Paige, 538. 6 Paige V. Stubbs, 39 Iowa, 537. § 273 DUTIES AND DEALINGS. 459 a long lapse of time ; ^ and a deed given by the client as security for compensation may be allowed to stand as security for what is already done.^ The general principle is that an attoi-ney, upon principles of public policy if for no other reason, is not permitted to purchase the subject-matter of the litigation he is managing for his client. A grant of- land by a client to his attorney, pending a suit for the recovery of it, is forbidden at common lavsr.^ In equity also an attorney , pendente lite, or vrhilst doing business for his client, is forbidden to prevail upon him to give security, or to sigree to an exorbitant rew^ard. In such cases a court of equity will in- terfere ; for no attorney can take anything for his own benefit, pending the suit, except his demand, nor until the relationship and influence have ceased.* This is the general rule, subject to the qualification that an attorney may purchase of his client if he can show conclusively to support his purchase that he paid the full amount he could have obtained from any other person f and the rule and qualification is substantially the same when the sale is by an attorney to his client.^ The courts have sometimes decreed that conveyances to an attorney should stand as security for the services already performed, or for money due, and the surplus declared a trust.'^ The courts do not hold that an attorney is absolutely incapa- ble of purchasing from his client,^ but watch such a transaction with jealousy, and throw on the attorney the burden of proving that the bargain is, generally speaking, as good as any that could have been obtained by due diligence from any other purchaser. The circumstaiices of the employment may be considered, and 1 Smith u. Thompson's Heirs, 7 B. Mon. 310; Leisenringi). Black, 5 Watts,.303; Foreman v. Hunt, 3 Dana, 614; Howell's Heirs v. McCreery's Heirs, 7 Dana, 388; Busey v. Hardin, 2 B. Mon. 407. See Arden v. Patterson, 5 Johns. Ch. 44; Keigal V. Wood, 1 Ibid. 401. 2 Mason v. Ring, 3 Ahb. N. Y. App. 210. 8 Hall «. Hallett, 1 Cox, 134; 2 Inst. 208. * Westminster I, chap. 25; Ibid. 11,'chap. 29; 28 Edw. I, chap. 11; Saunderson V. Glass, 2 Atk. 298; Wood v. Downes, 18 Ves. 120; Wells v. Middleton, 4 Brown Pari. C. 26; Bellen v. Russell, 1 Ball & B. 96. 6 Harris v. Tremenhere, 2 Schoales & L. 474; 15 Ves. 42. t G. 108, 123. § 297 LIABILITY TO CLIENTS NEGLIGENCE. 491 action. If diligence would have been ineffectual, the defendant must show it.i It is the duty of the attorney in the conduct of a cause to > pursue that course which will entail the least costs on his client, so long as such a course is equally beneficial in other respects.^ An attorney is liable for failing to sue for a sufficient amount, as for $12 on a debt of 11200. If he undertakes to supervise writs which it is not his strict duty to supervise, he is liable for negligence and want of skill in so doing,^ and he is liable for omitting to sue one of the parties to a note placed in his hands for collection ; but if he sued one of the makers of the note in due course of law, and recovered a judgment which found suffi- cient property to pay the debt, and the plaintiff by his own act surrendered and vacated the judgment, it is a good defense.* If the attorney, as a general rule, disobeys the lawful instruc-/ tions of his client and a loss ensues, he is responsible. Put he is not bound to proceed in a cause unless his fees are tendered or secured to him, if he makes a demand to that effect, and gives the client a reasonable notice of his intention to abandon th-e cause unless they are paid or secured to him in some way.^ Having instituted proceedings, the attorney must prosecute*) them with diligence.^ A nonsuit is not itself evidence of negli- gence ; '' but the attorney is liable for improperly dismissing the client's action.^ The English barrister may, in his discretion, consent to a nonsuit.^ 1 Godefroy v. Jay, 7 Bing. 413; Swannel v. Ellis, 1 Ibid, 347 ; Bourne v. Big- gies, 2 Chit. 311. 2 Lee V. DiiKon, 3 Fost. & F. 744. 3 Varnum v. Martin, 15 Pick. 440; Wallcer v. Goodman, 21 Ala. N. S. (347. * Ransom v. Cothran. 6 Smedes & M. 167. See Williams «. Reed, 3 Mason, 405. 5 Gilbert v. Williams, 8 Mass. 51; Cox v. Livingston, 2 Watts & S. 103; Glea- sdn V. Clark, 9 Cowen, 57; Castro v. Bennett, 2 Johns. 296; Rowson v. Barle, Mood. & M. 5.38; Wadsworth v. Marshall, 2 Cromp. & .J. 666; Mordecai v. Solo- mon, Sayers, 172; Creswell v. Byron, 14 Ves. 272; Hoby v. Built,3 Barn. & Adol. 350; Harris v. Osborn, 4 Tyr. 445; 2 Cromp. & M. 629; Anon. 1 Sid. 31, pi. 8; Love V. Hall, 3 Yerg. 408; Van Sandan v. Browne, 9 Bing. 402; Heslop v. Met- calfe, 8 Sim. 622. 6 Fitch V. Scott, 3 How. (Miss. ) 314; Ridley v. Tiplady, 20 Beav. 44; Frankland «..Cole. 2 Cromp. & J. 590. " Gleason v. Clark, 9 Cowen, 57; Galllard u. Smart, 6 Ibid. 385. 8 Evans v. Watrous, 2 Port. 205. 9 Lynch v. Cowell, 12 L. T. N. S. 548; Chown v. Parrott, 14 Com. B. N. S. 74; Swinfen v. Chelmsford, 5 Hurl. & N. 890; Swinfen v. Swinfen, 1 Com. B. 364, 400. 492 LIABILITY TO CLIENTS — NEGLIGENCE. §§298-9 § 298. Position of burden of proof in cases of negli- gence. — Special negligence being alleged, the client must state . and prove the negligent act ; or, at least, state and prove circum- stances from which negligence is implied by necessary legal inference.! ]3^^ when negligence has been proved, in conse- quence of which judgment has gone against the client, it is not incumbent on the client to show that but for the negligence he could have succeeded in the action. It is for the solicitor to show that the client has not been injured by it."^ So, under special circumstances, it has been held that the burden of proof is upon an attorney, regularly employed to con- duct a cause, to show that his client has not been injured by his negligence ; as where one was sued for negligence in allowing a judgment to go by default in an action which the plaintiff had retained him to defend, the negligence being proved, it was de- cided that it was for the attorney to defend himself by showing that the plaintiff had no defense in that action, and not for the plaintiff to show that he had a good defense, and so had been injured.^ § 299. Instances of negligence. — The following acts have been held to amount to negligence for which an attorney is ' liable : Misdescription in the particulars of sale prepared for a sale under the authority of the Court of Chancery.* Vendor's solic- itor causing abortive expenses to be incurred by his client, and executing a conveyance, while the title deeds were, as he knew, in the hands of an adverse party. ^ Allowing client to enter into unusual covenant without explaining to him the liability incur- red.*" Solicitor of purchaser or intending lessee omitting to investigate the title as far as the conditions of sale will allow him.' Omitting (in a case where counsel is employed) to lay before counsel the whole abstract received from the purchaser.^ 1 Wharton on Negligence, sec. 752; Purvis v. Eaudel, 12 Clark & F. 91. 2 Godefroy v. Jay, 7 Bing. 413. But see Harter v. Morris, 18 Ohio St. 491. 3 Godefroy v. Jay, 7 Bing. 413. ■* Taylor v. Garman, 4 I. E. Eq. 550. 5 Fotts V. Dutton, 8 Beav. 493. 6 Stannard v. UUithorne, 10 Bing. 491. ' Knights V. Quarles, 2 Brod. & B. 102; Allen c. Clark, 1 N. E. 358. 8 Treson v. Pearman, 3 Barn. & C. 799. § 299 LIABILITY TO CLIENTS — NEGLIGENCE. 493 Solicitor of intending mortgagee omitting to make the proper searches,^ or to give the proper notices to secure priority of title.^ But it is not the duty of the solicitor to ascertain the value of the subject of the mortgage ; nor to warn the client against every possible folly, such as paying the money without first obtaining the security.^ He is liable for neglect in drawing up a decree,* in neglecting to duly enter up a judgment,^ in neglecting to prevent the claim being barred by lapse of time, and to prepare for trial .^ So also, for negligence in subpoena- ing the requisite witnesses, and in attending the trial at the ap- pointed time ; '' or the referee in case of a reference ; or at any stage of the cause where the attorney's presence may be requis- ite ; ^ and so as to the preparation of evidence.^ It is held actionable negligence to prosecute an action too soon,^" or to delay bringing an action until it is too late to be available and the claim is lost.^i' So if an attorney disobeys the ] lawful instructions of his client and a loss ensues, he is responsi- / ble.^ He is liable for improperly dismissing his client's suit ; ^^ but not for omitting to defend a suit if he be not instructed in the defense. 1* He is liable for omitting to insert clearly, neces- 1 Cooper V. Stephenson, 21 Law J. N. S. Q. B. 292. 2 Watts V. Porter, 3 El. & B. 743; Clark v. Marshall, 34 Mo. 429; Gore v. Brazier, 3 Mass. 543; Sprague v. Baker, 17 Mass. 586. 8Hayne v. Rhodes, 8 Ad. & E. N. S. 342; Brumbridge v. Massey, 28 Law J. N. S. Ex. 59. 4 Wharton on Agency, sec. 598; In re Bolton, 9 Beav. 272; In re Spencer, 18 Week. E. Oh. 240. 5 Flower «. Bolinghroke, 1 Strange, 639; Fitch v. Scott, 3 How. (Miss.) 314; Hogg V. Martin, Kiley, 156; Cox K.Livingston, 2 Watts & S. 103. 6 Godefroyw. Jay, 7 Bing. 413; Konfigny t).Peale,3Taunt.484; Lowryti. Guild- ford, 5 Car. & P. 234. " Keece v. Eigby, 4 Barn. & Aid. 202; Price v. BuUen, 3 Law J. K. B. 39; Nash V. Swinburne, 3 M. & G. 630; Eouflgny v. Peale, supra, 4 Scott N. S. 326. 8 Swannel v. Ellis, 1 Bing. 347; Atcheson v. Madock, Peake, 163; Dauntley v. Hyde, 6 Jur. 163. 9 Long V. Orsi, 18 Com. B. 610. i« Hopping V. Quinn, 12 Wend. 517; Long v. Orsi, 18 Com. B. 619; Thwaites v. Mackenzie, 3 Car. & P. 341. 11 Smedes v. Elmendorf, 3 Johns. 185; Walpole v. Carlisle, 32 Ind. 415; Ehines V. Evans, 66 Pa. 192; Fitch v. Scott, 4 Miss. 314. 12 Gilbert v. Williams, 8 Mass. 51 ; Armstrong v. Craig, 18 Barb. 387; Cox v Livingston, 2 Watts & S. 103. 18 Evans v. Watrous, 2 Port. 205. K Boston V. Craig, 2 Mo. 198 . 494 LIABILITY TO CLIENTS NEGLIGENCE. § 299 sary words in a pleacling,i and for negligently performing acts which do not come within the striot'line of his duty, if he un- dertakes to perform them,^ as preparing a writ of attachment or recording a mortgage,^ when not a part of his duty. The client must in some way be injured by his attorney's neg- ligence, or he cannot maintain an action even for nominal dam- ages.* Whether given facts amount to actionable negligence is held in California to be a question of law for the court.^ But in nearly every other locality it is for the jury under the direction of the court.^ The attorney is also liable for the consequences of ignorance or non-observance, of the rules of practice of the court in which he proceeds.'' For the want of care in the prep- aration of causes for trial, or of attendance thereon with his wit- nesses ; ^ and for the mismanagement of so much of the con- duct of a cause as is usually and ordinarily allotted to his depart- ment of the profession ; as, for instance, an English attorney neglecting to retain counsel ; ^ to deliver a brief ; ^^ or to attend the trial himself or by one of his clerks so as to properly in- struct Counsel ; ^^ to attend an arbitration where counsel was not retained ; ^^ neglecting to inform client that if he proceeded in an action without the consent of the creditors he would be liable for the costs ; ^^ abandoning a case without reasonable notice to the client, although not supplied with funds ; ^* neglecting, 1 Varmim u. Martin, 15 Pick. 440. 2 Walker v. Goodman, 21 Ala. IST. S. 647. 3 Miller v. Wilson, 24 Pa. 114. ^Harter v. Morris, 18 Ohio St. 492; Suydam v. Vance, 2 McLean 99; Grayson u. Wilkinson, 13 Miss. 268. » Gambert n. Hart, 44 Cal. 542. 6 Kliines v. Evans, 66 Pa. 192; Eeece v. Rigby, 4 Barn. & Adol. 202; Penning- ton V. Yell, 11 .\ik. 212; Evans v. Watrous, 2 Port. 205; Hogg v. Martin, Riley, igii; Goodman J). AValker, 30 Ala. N. S. 482. ' Godefroy v. Dalton, 6 Bing. 468; Cox v. Leach, 1 Com. B. N. S. 617; Hunter V. Caldwell, 10 Ad. & E. N. S. 69; Frankland «. Cole. 2 Cromp. & J. 590; Hunt- ley V. Bulwer, 6 Bing. N. C. 511; Stokes «. Trumper, 2 Kay & J. 232; Dearborn V. Dearborn, 15 Mass. 316. s Godefroy v. Dalton, 6 Bing. 468; Reece v. Rigby, 4 Barn. & Aid. 202. 9 Rex V. Tew, Sayers, 50. w De Roufigny v. Peale, 3 Taunt. 484. " Hawkins v. Harwood, 4 Ex. 503; De Roufigny v. Peale, 3 Taunt. 484. 12 Swanuel v. Ellis, 1 Bing. 347. 13 Allison V. Rayner, 7 Barn. & 0. 441. " Hoby V. Built, 3 Barn. & Aid. 349, § 299 LIABILITY TO CLIEfJT NEGLIGENCE. 495 while suing upon French bills of exchange, to ascertain whether they had been indorsed according to French law.^ An attorney at law is responsible for losses caused by his dis- regard, in bringing a suit for his client, of a rule of law which was well and cleai'ly defined both in the text-books and the re- ports, and whicli had existed and been published long enough to justify the belief that it was known to the profession. An at- torney's receipt for a claim placed in his hands for collection is admissible evidence ao-ainst him in an action on the case for neg- ligence and unskillfulness, to prove the relation of attorney and client ; and the record of the suit on the claim is also admissible against him to prove the final determination of that suit, altliough it was conducted by him in the name of another attorney.^ An attorney bringing an action for a client within a limited jurisdiction, on a cause of action arising out of such jurisdic- tion, is liable for negligence. ^ An attorney, before issuing a writ in a court of peculiar constitution, is bound to ascertain that the court has machinery to fulfill the object of the action.* A n attorney is bound to sue out the proper process against bail,^ and against an officer for taking insufficient bail, or not delivering over the bail-bond.^ He is bound to deliver an exe- ecution to an officer in season to preserve attachment,'' but not to attend in person to the levy of an execution,^ nor search for property,^ nor to convey to a sheriff his client's directions for seizincr o-oods on an execution. -"^ When an attorney takes the responsibility of dismissing a suit on receiving in payment claims on other parties, he renders him- self liable for the amount of the claim on which the action dis- missed was founded, unless he proves that a judgment on that claim would have been of no value." Proceedings on motion against an attorney for money collected are no bar to a recovery 1 Long )'. Orsi, 18 Com. B. filO. 2 Goodman c. Walker, 30 Ala. 4S2. 3 Williams v. Gibbs, 6 Nev. & M. 788. 4 Cox V. Leech, 38 Eng. L. & Eq. 271. See Long c. Orsi, 37 Eng. L. .<: Eq. 2.33. 6 Dearborn v. Dearborn, 15 Mass. 31(1; 6 Eng. 312. 6 Simmons v. Bradford, 15 Mass. 82: Crooker v. Hutchinson, 1 Vt. 73. ■ Phillips V. Bridge, 11 Jlass. 242. 8 Williams v. Beed, 3 Mason, 405; Pennington c. Yell, 6 Eng. 212. 9 Ibid. 10 Ford V. Williams, 3 Kern. 577. 11 Coopwood V. Baldwin, 25 Miss. 129. 496 LIABILITY TO CLIENTS NEGLIGENCE. § 299 in an action on the case for damages.^ An attorney employed to examine a land-title cannot set up in defense to an action for damages for his negligence in overlooking a lien on the land, that such lien was erroneous or of doubtful validity.^ Attor- neys are liable for appearing and defending without authority, especially where they do it unskillfully.^ An attorney employed to record a mortgage, but who neglected to do so until after other subsequent incumbrances have been recorded, is liable im- mediately to the mortgagee for all the damages which are likely to be sustained by his default.* In a suit against an attorney for neglecting to defend an ac- tion, his declarations made to the court, when the action was called on for trial, that he had no defense to make, because his client though requested to instruct him in a defense had not done so, are admissible in evidence not to prove the truth of the facts stated, but the circumstances which occurred at the time of the alleged negligence.^ When an attorney is sued by his client for negligence and un- skillfulness, he cannot set up champerty in the contract as a de- fense,^ nor that he consulted a distinguished attorney respecting the proper course to be pursued by him, or that the arrangement made by him was, in the opinion of the witness, the best that could be made for his client's interest.*^ It has been held actionable negligence for an attorney to bring his. action in a court which has no jurisdiction,^ or to lay the venue in the wrong county,^ or to proceed on a wrong section of a statute which gives the remedy ;!" but he is not liable be- cause the statutory proceeding was in law ineffectual to accom- plish the purpose for which he was retained, or was made so by 1 Ooopwood V. Baldwin, 25 Mias, 129. 2 Gilman v. Hovey, 26 Mo. 280. 8 O'Hara v. Brophy, 24 How. Pr. 379. * MUler V. Wilson, 24 Pa. 114. 6 Salisbury v. Gourgas, 10 Met. 442. 6 Goodman v. Walker, 30 Ala. 482. ■! Ibid. In an action against an attorney for negligence, as such, the fact that the client continued to employ him after knowledge of the negligent conduct is ad- missible evidence on the question of damages. (Derriokson v. Cady, 7 Barr, 27.) 8 Williams v. Gibbs, 5 Ad. & E. 208. 1 Kemp ti. Burt, 4 Barn. & Adol. 424. i» Hart V. Erame, 6 Clark & F. 193. § 299 LIABILITY TO CLIENTS NEGLIGENCE. 497 the decision of the court.i He is liable sometimes for propecut- ing too soon, as on a note before the last day of grace has ex- pired,^ or before the requisite notices and preliminary proceed- ings have been disposed of,^ or before sufficient information is had to ascertain whether there is a right of action.* He is also sometimes responsible for undue delay, as where the debt is lost by reason of the insolvency of the debtor during the delay.^ An attorney is liable for allowing judgment to go by default without his client's consent ; but not for omitting to defend, un- less he has been instructed in the defense.^ He is not liable for not filing pleas merely for delay, although instructed to do so; and he is liable only for nominal damages, if at all, if he can show that the defense he was employed to make was not good.' An attorney who neglects to take proper precautions in mat- ters affecting his client's interests, and within his knowledge, is liable, as in cases of the death, marriage, or insolvency of the opposite parties ;^ and he should proceed to set aside all irregu- lar proceedings prejudicial to his client.^ It is also his duty to see that recognizances entered into by a receiver in an action are in proper form.^" As a retainer to prosecute a suit authorizes the attorney to conduct it to final judgment and execution,^^ he is liable for not 1 Bowman v. Tallman.'S Eobt. 385. 2 Hopping V. Quinn, 12 AVend. 517. » Longi). Orsi, 18 Com. B. 619; Hunter v. Caldwell, 10 Q. B. 69. * Thwaites v. Mackenzie, 3 Car. & P. 341; Gill v. Ijougher, 1 Cromp. & J. 170; Montgomery ?;. iJevereaux, 7 C. C. & F. 188. 6 Smedes v. Elmendorf, 3 Johns. 185. See Brougher v. Scobey, 23 Ind. 583; Wilson V. Coffin, 2 Cusli. 316; Varnumi). Martin, 15 Pick. 440; Dearborn v. Dear- born, 15 Mass. 315 ; Picketts v. Pearsons, 17 Vt. 470; Suydara v. Vance, 2 McLean, 99; Braine v. Spaulding, 52 Pa. 247; Wakeman v. Gowdy, 10 Bosw. 208. 6Godefroyt). Jay, 7 Bing. 413; People v. Sanborn,! Scam. 123; Benton «. Craig, 2 Mo. 198. See Grayson v. Wilkinson, 5 Smedes & M. 268; Salisbury v. Gourgas, 10 Met. 442. 7 Johnson v. Alston, 1 Camp. 176; Pierce v. Blake, 2 Salk. 515; Vincent v. Grooms, 1 Chit. 182; Anon. 1 Wend. 108; Gilberts. Williams, 8 Mass. 51; Gray- son V.Wilkinson, 5 Smedes & M. 268 ; Hastings v. Halleek, 13 Cal. 203. See Atch- eson V. Madoek, Peake, 162. 8 Stannard );. Ullithorue, 10 Bing. 491; 4 Moore & S. 359; Jacond v. French, 12 East, 317. 9 Godefroy v. Jay, 7 Bing. 413; Small wood o. Norton, 20 Me. 83. 1" Simmons v. Eose, 31 Beav. 1. 11 Brackenbury v. Pell, 12 East, 588 ; Lawrence v. Harrison, Style, 426. A. & C— 32. 498 LIABILITY TO CLIENTS NEGLIGENCE. § 300 duly entering up judgment/ or for not charging the defendant in execution.^ Still an attorney is not bound to attend person- ally to the levy of an e;cecution,8 nor to search for property.* Besides, to maintain an action for negligence against an attor- ney for not issuing an execution, he considering it not advisable, there must be some evidence that it was for the benefit of the client to have it done, or that he made no inquiry as to the finan- cial condition of the debtor. In such case the attorney is liable fo;" any amount which the jury think execution would have se- cured for the client. If he doubts the expediency of proceed- ing, he should at once notify his client, and obtain specific in- structions, one way or the other.^ Under somewhat similar qualifications, the attorney is also liable for not seasonably su- ing out scire facias against bail,^ but he is not bound to institute new collateral suits without special instructions.'^ He has also been held liable for delaying to deliver an execution to the offi- cer, whereby the right to issue an attachment is lost,^ and for not giving notice of the insutficiency of bail, if he knows it, whereby the debt is lost ; ^ but he is not bound to move for a new trial on questions of law, without special instructions.-"' § 300. Pleading and evidence in actions against attor- neys for negligence — Form. — The plaintiff may sue in as- sumpsit or case for negligence. If the action be founded in fraud, case is the preferable form of action, it having been said that the Statute of Limitations might thereby be avoided. ^^ But I Flower v. Bolingbroke, 1 Strange, 639. ^ Eussell V. Palmer, 2 Wils. 325; Russell v. Stewart, 3 Burr. 1787; Pitt v. Yal- den, 4 Ibid, 2080; Lee v. Ayrtou, Peake, 119. But see Laidler v. Elliott, 3 Barn. & C. 738. 3 WilliaiQS V. Reed, 3 Mason, 405. ■1 Pennington v. Yell, 6 Bng. 212; Ray v. Birdseye, 5 Denio, 619; S. C. 4 Hill, 158. 5 Harrington v. Binns, 3 Fost. & F. 942; Dearborn v. Dearborn, J5 Mass. 316. 6 Dearborn n. Dearborn, supra; Crooker v. Hutcliinson, 1 Vt. 73. See Sim- mons V. Bradford, 15 Mass. 82. ' Pennington «. Yell, 6 Ehg. 212. 8 Phillips V. Bridge, 11 Mass. 240 ; Pitt v. Yalden, 4 Burr. 2060 ; Russell v. Palmer, 2 "Wils. 325. 8 MeWilliamS v. Hopkins, 4 Rawle, 382; Simmons v. Bradford, 15 Mass. 82. m Hastings v. Halleck, 13 Cal. 203. II Russell V. Palmer, 2 Wils. 328; Pitt v. Yalden, 4 Burr. 2060; Knight r. Quarles, 4 Moore, 332; Swannell «. Ellis, 1 Biug. 347; Shorts. McCarthy, 3 Barn. & Aid. 626; Brown v. Howard, 2 Brod. & B. 73; 4 Moore, 508. § 300 LIABILITY TO CLIENTS NEGLIGENCE. 499 it appears that if the cause of action be the breach of duty aris- ing from negligence, the Statute of Limitations is equally avail- able in case as in assumpsit. In actions for negligence against an attorney the plaintiff must aver a cause of action, and prove it as averred.! For the breach of the implied contract of an attorney to investigate the title to real estate, in an action by the executor of the purchaser, it must be averred that the testa- tor sustained some actual damage.^ It is not necessary to allege that the party against whom the former action v\ras depending was indebted, etc., but if the plaintiff unnecessarily set out the proceedings in which the defendant was retained, he should state them with accuracy.^ The declaration may be without any in- ducement, and may commence with a statement of the defend- ant's retainer, without stating a consideration.* It is not neces- sary to state in the declaration of what court the defendant was an attorney, but if stated it must be proved, though the defend- ant put in his plea as such.^ It is generally sufficient to prove that the attorney has acted as an attorney of the court of which he is alleged to be an attor- ney. Of course it may also be proven by the rolls and records.® Where the question is whether the defendant has been guilty of gross negligence, contrary to the known and usual practice, those who are conversant in the same kind of practice may be examined as witnesses on either side.^ If there have been ex- press instructions, the same should be proven. Where the pro- ceedings in a former action form the groundwork of the action against the attorney, such proceedings should be produced, or the necessary steps taken to give secondary evidence of them.^ In support of an action, for instance, for neglecting to have a witness at a trial where plaintiff was nonsuited, the plaintiff must prove by calling the witness, or otherwise, ihat such wit- ness was necessary and material, and that his attendance might 1 1 "Wm. Saund. a. n. a. 2 1 Cliitty on Pleading, 12. 8 Lee V. Ayrton, Peake, 119; Brown v. Jacobs, 2 Esp. 726. * Bourne v. Diggles, 2 Chit. 311; Knight v. Quaries, 4 Moore, 532. 6 Green v. Jackson, Peake, 311; 2 Chit. 311; 2 Ohitty on Pleading, 371. 6 Eex V. Crossley, 2 Esp. 576; Berryman v. '\Vise, 4 Burn. & E. 366; Stark on Evidence, 130; Green ii. Jackson, Peake, 236. ' Russell V. Palmer. 2 Wils. 328. 8 Parry v. Collis, 1 Esp. 399; Eeece v. Eigby, 4 Barn. & Aid. 202. 500 LIABILITY TO CLIENTS NEGLIGENCE. § 300 have been procured, and that plaintiff was nonsuited.^ And in an action for the loss of a debt, through defendant's negligence, plaintiff must establish the existence of such debt; and if he has obtained a judgment to recover it, that will be evidence of the debt, and he should prove the judgment by the judgment- roll, or an examined copy thereof. If the former defendant had been arrested on mesne process, and the action is against the de- fendant for negligence whereby the former defendant was superseded, besides proving the debt the writ should be pro- duced, or an examined ao^j if it has been returned ; and the actual time of commitment should be proved by the books of the prison ; the grounds of the discharge will be shown by means of the supersedeas or order for the discharge.^ If the plaintiff has been evicted in consequence of a defect in title arising from the defendant's negligence, he should produce the deeds, and prove the execution of them and the payment of the money, and show that he has been evicted by proof of the judgment in ejectment, the execution of the writ of possession producing the writ, or an examined copy if it has been returned.^ In an action on the case against an attorney for negligence, in not duly moving to set aside the proceedings for defect of serv- ice, in consequence of which judgment had gone by default and final judgment had and execution issued thereon, it was held that the plaintiff was bound to prove that the judgment signed against him had been completed and the judgment-roll carried in, and such judgment proved by an examined copy.* Proof of a person being an attorney may be shown by the production of the original roll signed by the party on his ad- mission, together with proof of his signature as evidence of the identity of the party, or by an examined copy of the roll to- gether with the admission ; or the fact of a person of the same name being an attorney may be shown by the clerk's entry in his books ; and the admission or some other proof, as for exam- ple, of practice as an attorney, will then be necessary to show that this person is the party in question.^ 1 Reece v. Rigby, i Barn. & Aid. 202. 2 Russell V. Palmer, 2 Wils. 328; 2 Stark on Evidence, 134. 8 2 Stark. Ev. 135. 1 Godefrey v. Jay, 1 Moore & P. 236. 6 Kex V. Croasley, 2 Esp, 526. See Jones ii. Stevens, 11 Price, 251 ; Pearoe v. "Whale, 5 Barn. & O. 39; Lewis v. "Walter, 3 Barn. & Or. 138. In an action for a libel on a plaintiff tending to injnre his credit and reputation § 300 LIABILITY TO CLIENTS — NEGLIGENCE. 501 In an action against an attorney for neglect in the management of a suit, it is held not necessary to aver that the i^laintiff had paid or secured him a fee ; an averment that the defendant un- dertook to prosecute the suit for a sum thereafter to be paid is sufficient.! But to i-ender an attorney liable for a debt placed in his hands for collection, plaintiff must show that he had a valid claim, which has been impaired or lost through the attor- ney's misconduct or negligence.^ It is sufficient prima facie proof that he was employed to show that he acted and was recog- nized on the records of the court acting as such.^ To charge an attorney with negligence in failing to set up a defense based upon facts communicated to him by his client, he must show by evidence the existence of such facts, and that they were sus- ceptible of proof at the trial by the exercise of proper diligence on the part of the attorney.* Evidence for defendant. — It is a sufficient answer to an action against an attorney for negligence, that the defendant's diligence would have been ineffectual ; as if, for instance, in an action for negligence for not giving previous notice in a suit against ex- cise officers for a seizure, that the seizure was lawful;^ or for suffering the defendant in a former suit to be superseded for want of proceeding to judgment in due time, that the plaintiff in a former suit was a married woman.^ It is, to state the rule generallv, a sufficient answer to suits by clients, that the attor- ney has acted with reasonable skill and knowledge, and that the error, if any, was such a one as a skillful and cautious man might fall into.^ In actions by third parties against the attorney for acts done in conducting his client's business, (as in an ac- in his profession and business of an attorney, and defamatory of liim in his said profession and business, his being an attorney was proven by the book of ad- missions produced by the proper officer, and that he practiced as an attorney. "Where defendant charged plaintiff witli being a swindler, and threatened to have him struck off the roll of attorneys, the court considered the defendant's threat to be a distinct acknowledgment that the plaintiff was an attorney, and further proof was dispensed with. (Berryman v. Wise, 4 Dura. & E. 366.) 1 Eccles «. Stephenson, 3 Bibb, 517. 2 Shiller v. Davidson, 4 La. An. 171. 3 Smallwood v. Norton, 20 Me. 83. ■1 Hastings v. Halleck, 13 Cal. 203. 5 Aitchesou v. Madock, Peake, 162; Bourne v. Diggles, 2 Chit. 311. « Lee V. Ayrton, Peake, 161. 7 Montrion v. Jeffreys, 1 Ryan & M. 320; Pitt v. Yalden, 4 Burr. 2061. 502 LIABILITY TO CLIENTS NEGLIGENCE. § 301 tion for trespass) it is a defense that the attorney has not gone beyond the strict line of his duty. J An attorney is not liable in cases of doubtful construction of a statute.^ Where an attorney was sued for damages for not suing one of the parties to a note placed in his hands for collection, it was a good plea in bar that the defendant sued one of the makers of the note, and recovered a judgment against him, and found a sufficient amount of unincumbered property to pay the debt, and that the plaintiff by his own act surrendered up and va- cated the judgment.'' It is a good defense to an action for neg- ligence in not instituting a suit to recover a debt, that the debt was not due the client but to another at the time.* The fact that the plaintiff continued to employ the attorney after knowing of the negligent conduct, is evidence on the question of damages.^ § 301. Su£Eicient count against attorney for negligence. — In an action against attorneys at law for negligence and un- skillfulness, a count is sufficient which alleges that they con- ducted the suit so negligently and unskillfully, " in not having a certain writ of attachment, affidavit, and declaration before then prepared by them in said action, prepared, drawn up, and filed, and made out according to the laws of said State and the rules of said court, that the said plaintiff, by the said neglect of, etc., was hindered and prevented from recovering judgment, etc., and was forced and compelled to release and dismiss the levy of said writ of attachment," or " by reason whereof the said plaintiff has been prevented from recovering her demand," etc. The following count has been held sufficient : " That the defendants through want of care and skill did dismiss the levy of a certain writ of attachment, before that time levied on the property of the defendant therein, did dismiss, relinquish, 1 Sedley v. Sutlierland, 3 Esp. 202; Garrett v. Smallpage, 9 East, 330; Smith v. Gainsford, 1 Rose, 148. 2 Bakie v. Cliandlesa, 3 Camp. 17. 8 Ransom v. Cothrau, 14 Miss. 167. 4 Jackson v. Tilghman, 1 Miles, 31. s Derrickson i'. Cady, 7 Pa. 27. When a loss was sustained by a client in re- spect of conduct as to which the advice of the solicitor was founded on the opinions of competent surveyors as to the value of the property, and those opinions submitted to the judgment of the client, the Ooiirt of Chancery dis- missed a bill for relief. (Chapman v. Chapman, 9 Law R. Eq. 276.) § o02 LIABILITY TO CLIENTS NEGLIGENCE. 503 and release all liens which had attached or accrued by virtue of said levy," and that by means of the unskillful management of the defendant the plaintiff lost her said demand, and the means of recovering and collecting the same.i ^ When an attorney undertakes the collection of a debt it is his duty to sue out all processes, mesne and final, necessary to effect that object— not only the first execution, but such as may afterward become necessary ; to pursue bail and those who may have become bound with the defendant in the progress of the suit either before or after judgment; but not to institute new collateral suits without special instructions, such as actions against the sheriff and clerk for failure of duty.^ § 302. Negligence as a defense to an action for fees.— It seems that if an attorney's services have proved entirely use- less, there is no sort of question but that this may be shown in bar of an action for attorney's fees and of the whole action. The point that any competent evidence of negligence, ignorance, or want of skill is admissible as a defense to an action for pro- fessional services has not been so readily admitted. But the balance of authority seems rather in favor of the proposition.^ It is said that a declaration against an attorney for negligence must aver the payment of fees,* but there are authorities which hold that it is not necessary to aver that the plaintiff has either 1 Walker v. Gooflman, 21 Ala. (147. See, also, Skillen v. Wallace, 36 Ind. 319. 2 Pennington i-. Yell, 6 Eng. 212. See Holmes v. Peck, 1 R. I. 242; Lewis v. Collord, 14 Com. B. 208. If a declaration state that the plaintiff, by advice of the defendant, an attorney, instituted a suit, and then and there employed the defendant to prosecute said suit to judgment, who, in consideration thereof, undertook to conduct the same to the best of his skill, yet he had neglected to' file a declaration, whereby, .Sc. — it must be understood that the defendant's undertaking was for sufficient consideration. (Stephens v. White, 2 Wash. Va. 203.) Though a man is not bound to do an act for another without a reward, yet if he will voluntarily engage and enter upon the performance of it, he is liable for the consequences of his improper management, and cannot allege a want of consideration for his engagement. But if an attorney be sued for neglect of duty in not having tiled a declaration, it should appear that he was engaged in the catise, in season to have iiled it. s 2 Gr. Ev. sec. 143; Nixon v. Phelps, 3 Wils. IflS; Judah v. Trustees, 23 Ind. 272; S. C. 16 Ind. 56. See Cristee v. Sawyer, 44 N. H. 298; Fenno v. English, 22 Ark. 170. Bowman v. Tallman, 40 How, Pr. 1. * See as requisites of such a declaration, Wilson n. Coffin, 2 Gush. 316; Holman V. King, 7 Met. 384. 604 LIABILITY TO CLIENTS NEGLIGENCE. § 302 paid or secured the attorney a fee/ and Lord Tenterden has said that in order to recover his bill of costs the attorney is bound " to show affirmatively that he has done all that he ought to have done." ^ If a client sues an attorney for disregarding his instructions, he must show^ presumptively that he was damaged by the course of the attorney. Where a motion which a client desired to have made would probably not have been granted, and would have been likely to injure him, and it would not have been politic to put in certain evidence, the omission of which was complained of, the attorney recovered his bill.^ So an attorney at law may consent that a judgment obtained by his client upon the defendant's failure to answer be vacated, and the defendant allowed to answer, on a state of facts on which the court, if it pursued its customary practice, would , make an order to that effect. Such a consent, and the failure of the defendant before judgment, are not alone sufficient evi- dence of negligence to defeat an action brought by the attorney for his services in the suit. But if he consents without the knowledge of his client, he is responsible for any loss which may necessarily result, and which would have been avoided if his client had been informed of the facts. Evidence may be ad- mitted that at the time of vacating the default the debtor had property out of which the judgment could have been collected.* It has been held in England that negligence in the conduct of a cause cannot be set up as a defense to an action on the attor- ney's bill, and that it is no defense that the defendant has de- rived no benefit from the suit, where the failure does not result wholly from the attorney's negligence, but partly from acci- dent.^ But it is also held that an attorney cannot charge for work which is useless towards accomplishing the object his client has in view, although performed through inadvertence or inex- perience, and not with the design of imposing on his client.'' So 1 Bccles V. Stephenson, 3 Bibb. 517. 2 Allison V. Eayner, 7 Barn, & C. 441. 8 Nave V. Baird, 12 Ind. 318; Bowman v. Tallman, 2 Rob. 385. See Porter v. Euckman, 38 N. Y. 210; Headley v. Good, 24 Tex. 232; Chapman v. Van Tall, 8 El. & Bl. 396. * Clussman v. Merkel, 3 Bosw. 402. 6 Templer v. McLachlan, 2 N. B. 136; Dax v. AVard, 1 Stark. 409. 8 Hill V. Featherstonhaugh, 7 Bing. 569; 5 Moore & P. 541. § 302 LIABILITY TO CLIENTS NEGLIGENCE. 505 the j ury may discard an item of work entirely useless ; though upon an item partly useless, or in respect of which there has been any negligence, the client's remedy is only by a cross action.i And it is held that if an attorney conducting a suit commits an act of negligence by which all the previous steps be- come useless in the result, he cannot recover for any part of the business done. Whether or not in such case the work became wholly useless by his fault is a question for the jury.^ Such failure of the work has been held to be admissible as a defence under the general issue, in an action upon the attorney's bill,^ as in actions for negligence against the attorney the fact of his ^ having been retained as an attorney is put in issue by non- assumpsit.* Even where a jury has convicted an attorney of gross negligence, and he has brought an action for his bill of costs, the court has refused to stay proceedings in the latter action.^ But where there appears to be negligence or ignorance of the law on the part of the attorney, which creates unneces- sary costs, the court will order the costs to be disallowed on tax- ation without prejudicing his right to bring an action for theni.^ It is also held that where an attorney has been retained for the prosecution of a suit, and he has by crcissa negligentia in the conduct of a suit caused the suit to be lost, he cannot recover any portion of the bill,' As where, in bringing suit against an acceptor of certain foreign bills of exchange, the attorney did not ascertain whether his client's title was complete by special indorsement, as required by the law of the foreign country, and there being no such indorsement, the action was discontinued. The court held him guilty of such negligence as disentitled him from recovering the costs of the abortive proceedings.^ 1 Shaw V. Orden, 9 Bing. 287; 2 Moore & S. 341; 1 D. P. C. 705. 2 P.racey v. Carter, 12 Ad. & E. 373; Fletcher o. Winter, 3 Post. & F. 138. 8 Ibld.;'syme.s v. Nipper, Ibid. 337. ' Aides V. Gardner, 1 Car. & K. 564. See aa to what does constitute such gross negligence on the part of the attorney as to disentitle him to his bill, Bullmer v. Gillman, 4 M. & G. 108; 4 Scott N. E. 781. 6 Smith V. Eolt, 2 D. P. C. 62. f Cliff r. Prosser, 2 D. P. C. 21. f Stokes V. Trumper, 2 Kay & J. 232. a Long V. Orsi, 18 Cora. B. 610; 26 Law J. Cora. P. 127. See Chapman v. Van Toll, .". Jur. N. S. 1126; 27 Law J. Q. B. 1; 8 El. & B. 396. In an action by attorneys for the costs of a defense which failed, they having been absent on the day of trial, and some of the witnesses consequently not be- 506 LIABILITY TO CLIENTS NEGLIGENCE. § 302 In an action against an attorney alleging that he was retained to conduct the defense of the plaintiff on a criminal charge, and that, through his negligence, the plaintiff was convicted, the plaintiff, in order to recover more than nominal damages, must prove that he was convicted mainly through the attorney's neg- ligence, and the negligence being not taking the proofs of wit- nesses who were in court ready to be examined, but whom the counsel, on the plaintiff's own statement, did not wish to call, and whom the plaintiff did not insist on calling, the question for the jury was whether the attorney had done anything which, under all the circumstances, was likely to be of any use.^ It has been held in numerous cases that to defeat an attorney's claim for compensation in a professional matter, such services must be shown to have been utterly worthless. The cases on this point are not agreed ; and perhaps the weight of authority is in favor of admitting any evidence of negligence, ignorance, or want of skill as a defense to an action for professional ser- vices, as well as for any other work or labor. ^ But an attorney's right to compensation in one matter is not forfeited by his mis- conduct and breach of trust in another matter.^ And unless the client is in some way injured by his attorney's negligence, he cannot maintain an action even for nominal damages,* and usu- ally an attorney may recover his bill even if he has committed ing in court, it was held tliey were entitled to recover, notwithstanding the verdict had passed against their clients, unless the jury thought that the absence the witnesses had caused the loss of the verdict, and so made his services wholly valueless. (Dunn v. Hallen, 2 Fost. & F. 642.) 1 Hatch V. Lewis. 2 Fost. & F. 407; 7 Hurl. & N. 367; 31 Law J. Er. 26; 7 Jur. N. S. 1085; 5 L. T. N. S. 254. Negligence or uuskillfulness of one of a firm of attorneys is a good defense to an action by the firm for services ; nor is a retiring partner relieved from liability for the firm's negligence by a dissolution of the firm. (Warner!;. Griswold, 8 Cowen, 665; Livingston y. Cox, 6 Pa. 360; Cholmon- deley r. Clinton, 19 Ves. 261; Cooke v. Rhodes, Ibid. 273; Eager v. Barnes, 31 Beav. 579; Arden v. Tucker, 4 Barn. & Adol. 815; Kell v. Naiby, 10 Barn. & C. 20; Ward v. Lee, 13 Wend. 41; Perrins v. Hill, 2 Jur. 858; McFarland v. Crary, 6 Wend. 297 ; S. C. 8 Cowen, 253. But see Ayrault v. Chamberlain, 26 Barb. 83.) 2 2 Greenl. on Evidence, sec. 143: Bowman v. Tallman, 2 Robt. 385: Cousins v. Paddon, 2 Cromp. M. & R. 547 ; Randall v. Key, 4 Dowl. 682 ; Huntley v. Bui wer, 6 Bing. N. C. Ill; Lewis v. Samuels, 8 Q. B. 485; Hopping v. Quinn, 12 Wend. 517; Long v. Orsi, 18 Com. B. 610; Hill v. Feathersborough, 7 Bing. 569; Hill v. Allen, 2 Mees. & W. 284; Lymes v. Nipper, 12 Ad. & E. 377; Bracey v. Carter, Ibid. ,373. See Templer »). MoLachlan, 2 New R. 136; Farnsworth v. Gerrard, 1 Camp. ,38. 8 Currie v. Covvles, 6 Bosw. 452. * Harter v. Norris, 18 Ohio St. 492. §§ 303-4 LIABILITY TO CLIENTS NEGLIGENCE. 507 an error, if it were such an error as a prudent man might fall into.i § 303. Negligence of associates. — If a case requires the assistance of other counsel, and this is or ought to be known to the client, the original attorney is not liable for the negligence of the associate, unless he participates in it. He is only liable for negligence in selecting him, if he be an improper person. The client should be consulted, and if he acquiesce, it relieves the first attorney from liability." But it is otherwise as to the attorney's own associates in the conduct of his office business ; for they are regarded as his servants, and he is liable for all their acts within the scope of their employment,^ and where an attorney, without special authority, employs another per- son to prosecute a claim placed in his hands for collection, he is liable to his client for negligence of the person so em- ployed by him, and the fact that such person is himself a com- petent lawyer does not relieve the attorney employing him from liability to his client on account of such negligence.* So that it appears that the attorney is equally liable, whether the breach of duty has arisen through his own default or through the de- fault of his agent or his clerk. ^ A lawyer who appears for an- other without authority is liable for injuries caused by the in- trusion.'' § 304. Liability for matters not litigated. — Aside from litigated matters, the attorney is liable for negligence in exam- ining the title to property of which his client is the proposed 1 Montrion v. Jefferys, 2 Car. & P. 113, 1 Ey. & M. 317. 2 Wharton on Agency, sees. 601, 276, 24,5, 604; AVatson v. Muirhead, 57 Pa. 247; Godefroy v. Dalton, 6 Bing. 468; Porter «. Peokham, 44 Cal. 204. 3 Wharton on Agency, sees. 601, 276, 543-545. * Walker v. Stevens, 79 111. 193; Atbott v. Smith, 4 Ind. 452. 5 Wharton on Negligence, sec. 753; Collins v. Griffith, Barnes, 37; Simmons v. Rose, 31 Beav. 11; Norton v. Cooper, 3 Smale & G. 375; Warner v. Griswold, 8 Wend. 665 ; Livingston v. Cox, 6 Pa. 360 ; Floyd v. Nagle, 3 Atk. 568. 6 Bradt v. Walton, 8 Johns. 298; O'Hara v. Bropley, 24 How. Pr. 379; Whitney V. Ex. Co. 104 Mass. 1.52; Bradstreet v. Everson, 72 Pa. 124; Lewis v. Peck, 10 Ala. 142; Pollard v. Rowland, 2 Blackf. 22; Wilkinson v. Griswold, 12 Smedes & M; 669- Power v. Kent, 1 Cowen, 211; Birbeck v. Stafford, 14 Abb. Pr. 285; 23 How. Pr. 236; Mardis v. Shackleford, 4 Ala. 493; Morgan v. Roberts, 38 111. 65; Smyth V. Harrie, 31 111. 62; Dwight v. Simon, 4 La. An. 490; Poole v. Gist, 4 McCord, 250. 608 LIABILITY TO CLIENTS — NEGLIGENCE. § 305 purchaser,! in drafting forms of attestation,^ in omitting a seal where necessary,^ or in allowing his client to execute an im- proper covenant without informing him of its effect,* but not for opinions in cases of doubtful title ; and in England the ad- vice of counsel may relieve the attorney, but if he consults counsel, the attorney must examine the title deeds fully and lay the whole title before the counsel. If he gives only partial ab- stracts, though furnished by the client, omitting important parts, he is guilty of negligence ^ in not furnishing the whole. An attorney employed to invest funds in security is liable, if through want of ordinary skill, care, and prudence, the secur- ity turns out to be invalid or insufBcient as a matter of law. He is not bound to see that the value is adequate, unless he is especially employed for that purpose, nor to inquire into the personal responsibility of the borrower.^ When the attorney is guilty of negligence in investigating or not investigating the legal validity of the proposed securities, the plaintiff appears to be entitled to recover, in addition to the amount he has paid for a supposed good title, interest on the same during the time he held possession, especially if he has been compelled to pay mesne profits during the period.^ When he is retained to find an investment for money and to see that its value is sufficient, he is liable for the neglect of any precaution which a prudent and ordinarily skillful man would have taken.* § 305. Liability for acting in excess of authority. — An attorney generally has no authority to waive a judgment. He usually acts at his peril in so doing, and is responsible for loss,^ ilresonii. Pearman, 3 Barn..& C. 799; Brooks v. Day, Dick. 572; Brown w. Howard, i J. B. Moore, 508; 2 Brod. & B. 202. See Warne v. Kempster, 1 Post. & F. ms. 2 Elkington ii. Holland, 9 Mees. & W. 659. 3 Parker v. Rolls, 14 Com B. 691. * Stannard v. Ullitliorne, 10 Bing. 491; 4 Moore & S. 359. * Wilson V. Tucker, 3 Stark. 154; Ireson ». Pearman, 3 Barn. & C. 799. 6 Donaldson v. Haldane, 7 Clark & F. 762; Brown v. Howard, i J. B. Moore, 508; Dartnall v. Howard, 4 Barn. & C. 345. ' Allen V. Clark, 11 W. E. 304; 7 Law T. N. S. 781. SHaynes v. Rhodes, 8 Q. B. 342; Whitehead v. Greethan, 2 Bing. 464; Watts V. Porter, 3 El. & B. 743; Craig v. Watson, 8 Beav. 427; Green v. Dixon, 1 Jur. 137; Howell v. Young, 5 Barn. & C. 529. 9 Anon. 1 Wend. 108; Clussman v. Merkel, 3 Bosw. 402. § 306 LIABILITY TO CLIENTS NEGLIGENCE. 509 and such action will also prevent him from recovering for his services ; neither has he power to release sureties ; ^ nor to enter a retraxit ; ^ nor to release a witness ; ^ nor an indorser of a note, under an authority to sue the maker, at least without satisfaction or consent of client.^ He may be responsible for doing these things. An attorney has no implied authority to make a compromise by which land is to be taken instead of money.^ So a fortiori, if an attorney takes payment in a depreciated currency he is liable to his client for the amount of the depreciation.^ In cases of negligence against attorney an action lies at once, but if there is a delay, the proof of actual damages may extend toj those growing out of the injury up to the day of the verdict.^ The damages are usually confined to the loss actually sustained.^ § 306. Acting without authority.— If an attorney com- mence or defend an action or suit without authority, he is also liable for the consequences to the principal.^ And so if he take any step out of the ordinary routine of his professional duty, without or contrary to instructions ; '^^ but as attorneys are presumed to be invested with much discretion in the conduct of their professional duties, they are not generally amenable for acting in such matters which come within their legitimate pro- vince, even though contrary to the client's instructions.^^ An attorney, however, who undertakes the conduct of an ac- tion is liable for the consequences of not fully investigating the facts and evidence in support of it.^^ 1 Givens )i. Briscoe. 3 J. J. Marsh. 532. 2 Lambert v. Sandford, 2 Black£. 137. 3 Marshall v. Nagel, 1 Bail. 308; Bowie «. Hyde, 6 Barb. 392. ■1 East Elver Bank v. Kennedy, 9 Bosw. 543. 6 Huston c. Mitchell, 14 Serg. & R. 307. 6 Trumbull v. Nicholson, 27 111. 149. ' Wilcox H. Plummer, 4 Peters, 172; Marzetti v. Williams, 1 Barn. & Adol. 415. 8 Dearborn v. Dearborn, 15 Mass. 316; Orooker v. Hutchinson, 2 Chip. 117; Jones «. Lewis, 9 Dowl. Pr. 143; Huntington «. Eumnill, 3 Day, 390. 9 Gilbert v. Williams, 8 Mass. 51; Anon. 1 Salk. 88; Hubbard u. Phillips, 13 Mees. & W. 702; 2 D. & L. 707; Anon. 1 Wend. 108. i» Ibid.; Kolfe v. Kogers, 4 Taunt. 191. 11 Cox V. Livingston, 2 W. & S. 103; Talbotj). McGee, 4 Men. 377; Pikeji. Emer- son, 5 N. H. 393; Alton v. Gilmanton, 2 Ibid. 520; 1 Hill, 249. 12 Thwaite v. Mackerson, 3 Car. & P. 341; Gill «. Lougher, 1 Cromp. & J. 170; Montgomery «. Devereaux, 7 Clark & P. 188; Wilson v. Euss, 7 Shep. 421; Kane «. Van Vrauken, 5 Paige, 62; Gihon v. Albert, 7 Ibid. 278; Salisbury w. Gourgas, 10 Met. 442. 510 LIABILITY TO CLIENTS NEGLIGENCE. § 307 § 307. Collection and appropriation of money. — An at- torney is liable for gross neglect in collecting a claim.^ But it appears that an attorney who takes a note to collect is not chargeable with it unless he has received the money and refused to pay it over, or unless he might have made it and has not through neglect, or unless the debt is lost through unskillful- ness.^ Alleged negligence in collection is not substantiated by mere failure to account.^ An action cannot usually be maintained against an attorney for money collected by him, until demand has been made and payment refused or neglected, nor after the client has been guilty of inexcusable laches, as for instance a delay of six years from the inception of the claim, or six years after demand, or of course if the Statute of Limitations has run.* Where the relation with the client involves a series of acts and duties, an action will not lie until the relation is dissolved ; but while in single transactions, as the collection of a debt, suit should not be brought until demand made, still if an attorney does not pay over or give notice of money collected within a reasonable time, it is negligence which will justify an action brought without demand.^ If an attorney undertakes to collect a debt, and by his gross negligence makes it of less value and embarrasses the collection 1 Eeilly v. Cavanaugh, 29 Ind. 435 ; Eccles v. Stevenson, 3 Bibb, 517 ; Dearborn V. Dearborn, 15 Mass. 31(5; Oldham w. Sparks, 28 Tex. 425. 2 Hazelrigg v. Brenton, 2 Duval, 525; Croft v. Hicks, 26 Tex. 383; Morrill v. Graham, 27 Tex, 646; Nisbet v. Lawson, 1 Kelly, 275; Oldham v. Sparks, 28 Tex. 425i Fleming w. Culbert, 46 Pa. 498; Eose v. Gerrish, 8 Allen, 147; Pldgeon c. Williams, 21 Gratt. 251; Johnson a. Semple, 3lIowa, 49. In an action against an attorney for failure to collect a note, a count stating that the plaintiff caused to be delivered to the defendant, and the defendant received from him, a note made by a third person, calling for so many dollars, to bring suit and recover and collect of that third person, for the use and benefit of the plaintiff, for a cer- tain fee and reward to the defendant in that behalf, is defective in not Stating the plaintiff's title: and this defect is pot cured by a verdict which will not sup- port a judgment. (Sevier v. Holliday, 2 Ark. 512.) Under such count, the plaintiff cannot prove title; and if he could, a receipt given by the defendant to the plaintiff of a note described, on which the plaint- iff does not appear as a party in any capacity, would not be evidence of it. (Ibid.) 3 Bougher v. Schobey, 23 Ind. 583. ■1 Ibid. ; People v. Brotherson, 36 Barb. 662; Black v. Hersch, 18 Ind. 342. 5 Glen V. Cuttle, 2 Grant, 273; Denton v. Embury, 10 Ark. 228. See Burke v. Stillwell, 23 Ark. 294. § 307 LIABILITY TO CLIENTS — NEGLIGENCE. 511 of it, as receiving a note and mortgage contrary to the direction of his client, he is liable although the debtor be still solvent.^ If an attorney collects money under the direction and in the name of an agent, knowing that it belongs to the principal, and by order of the agent pays it in discharge of debts of the agent, such action does not relieve the attorney from liability to the principal.2 Where a solicitor allowed shares belonging to a. client to be forfeited by neglect, and afterward replaced them, giving less than would have originally been paid, it was held that the client could only claim to be placed in the same position as if the shares had never been forfeited.^ The damages to which an attorney is liable for neglect do not necessarily extend to the whole amount of the debt which he undertakes to collect, but only to the loss which his client has actually sustained.* An attorney who, after making a part of certain collections, under a special contract to be allowed a certain share for his services, refuses his client's demand to account, cannot claim the benefit of the contract as to money thereafter collected," nor can he set up that a claim collected was illegally acquired either . by the plaintiff or by his assignor, the original owner.^ An at- torney who uses as his own, money collected for his client, is liable for interest.^ Summary applications to compel attorneys to pay over money are only entertained on motion of the client ; not of his assignees.^ A receipt appearing on its face to be that of an attorney for a claim taken for collection, may be explained by parol evidence. An attorney receiving and holding a claim for the convenience of the owner, for the purpose only of receiv- ing and paying over money paid thereon, and for which the at- torney neither charges nor receives compensation, cannot be held responsible on the debt being barred by limitation.^ An attorney may interpose the plea of the Statute of Limitations '■ Wilson V. Coffin, 2 Cusli. 316; White v. Goffe, 24 Tex. 658. 2 Nisbet V. Lawson, LKelley, 275. 3 Smith V. Pocock, 23 Eng. Law & Eq, 470. 4 Cox V. Sullivan, 7 Ga. 144. 5 McDowell V. Baker, 29 Ind. 481. 6 Fogarty v. Jordan, 2 Eob. (N. Y.) .319. "! Mansfield u.Wilkerson, 26 Iowa, 482. But, not, it is said, until after demand. (Johnson v. Semple, 31 Iowa, 49. ) Or until a wrongful conversion. ( Walpole v. Bishop, 31 Ind. 156.) 8 Hess V. Joseph, 7 Bob. (N. Y. ) 609. 9 McAdoo V. Lummis, 43 Tex. 227. 512 LIABILITY TO CLIENTS NEGLIGENCE. § 307 when sued by his client for money which he has collected as attorney and failed to pay over, although no action can be maintained against an attorney for failing to pay over money collected for his client until he has failed or refused to pay it over after demand made. Yet the client cannot by this princi- ' pie of law excuse his laches in not making a demand within a reasonable time after he knows of the collection and conversion of the money. ^ No action can be maintained against an attor- ney for failing to pay over money collected for his client, until it has been demanded, and he has failed or refused to pay it over.^ An attorney collected money for a client, and remitted the amount by a draft of one bank on another, payable to the client's order and endorsed by him. The client received the money, and directed the attorney " to send the balance in the same way." The attorney sent another sum in the same way, and the draft was received, but before it could be collected the drawer failed, and it was not paid. It was held that the attorney was not liable as indorser. The indorsement was intended merely to ■transfer the attorney's legal title to his client, and not to incur a responsibility as indorser.^ Payment of an execution to an officer having the same dis- charges the debtor; but proof of such payment does not raise any presumption of payment over by the officer to the plaintiff's attorney, and the consequent liability of the attorney to the creditor. Proof of payment by the officer to the attorney is necessary to fix the latter's liability.* A mere notice to the attorney of record not to pay over the money collected to the client, given by persons clairning an interest in the fund, does not justify the attorney in detaining the same in his hands. The claimant should resort to an injunction, or garnishment, or some such proceeding.^ An attorney should not, without special authority, deliver his client's money to any third person what- ever ; if he does, he is liable for losses or negligence by the lat- 1 Kimbro v. Waller, 21 Ala. 376. 2 Taylor v. Bates, 5 Cowen, 376; Eathbun v. Ingalls, 7 Wend. 320; Staples e. Staples, i Greenl. 533; Taylor «. Armstead, 3 Call. (Va.)200; Hutchings v. GU- man, 9 N. H. 359; Buchanan v. Parker, 5 Ired. 597. 8 Kimmell v. Bittner, 62 Pa. 203. * Wilson V. Russ, 20 Me. 421. 5 Dunn V. Vannerson, 8 Miss. 579. § 308 LIABILITY TO CLIENTS NEGLIGENCE. 513 ter. Even where the money was stolen from a messenger of the attorney, the latter was held liable.^ § 308. Paying over moneys. — An attorney is liable to pay over moneys received by him after demand. The attorney should notify his client of his receipt of money for the latter within a reasonable time. If such notice is given, the client has no cause of action until after demand and refusal.^ If the at- torney is in doubt as to whether the money belongs to the client or not, he must pay it over on the tender by the client of suflS- cient indemnity, unless the fund be attached or enjoined in his hands.^ If there is, however, a relation involving a series of acts and duties, and the money depends upon the relation, the attorney is not liable until the relation is closed.* The commencement of an action against an attorney consti- tutes a sufficient demand for money collected by him.^ But it is also said that ordinarily a demand is necessary before bringing suit against an attorney for money collected by him ; but where it has been collected a long time, and its retention is unexplained, or where the party collecting has converted it to his own use, no previous demand is necessary.^ Where an attorney settles a judgment recovered by him for his client by allowing the same in payment of an account against himself, his client may repu- diate his act, and enforce the judgment, or he may ratify it, and sue the attorney for money had to his use.'^ 1 Grayson v. Wilkinson, 33 Miss. 268. 2 Wharton on Agency, sec. 606; Glenn v. Cuttle, 2 Grant Gas. 273; Bougher v. Scobey, 16 Ind. 152; Evans v. King, 16 Mo. 525; Beardslee v. Boyd, 37 Mo. 180; Krause u. Dorrance, 10 Pa. 462; Denton v. Embury, 10 Ark. 228; Cummins?). McLean, 2 Pike, 402; *ett v. Hempstead, 25 Ark. 462; Black w. Hersch, 18 Ind. 342; Taylor v. Armstead, 3 Call. (Va.) 200; Eathburn v. lugalls, 7 Wend. 320; Taylor v. Bates, 5 Cowen, 596; Satterly v. Erazer, 2 Sand. 141; People v. Brother- son, 36 Barb. 662; Mardis v. Shackleford, 4 Ala. 493. See, contra, Coffin v. Coffin, 7 Greenl. 298. 3 Wharton on Agency, sec. 606; Marvin v. Ell wood, 11 Paige, 365; Dunn t). Vannerson, 8 Miss. 000; 7 How. 579. 4 Glenn v. Cuttle, 2 Grant Cas. 273. 5 Hollenbeck v. Stanberry, 38 Iowa, 325. 6 Chapman v. Burt, 77 111. 337. That a demand is necessary, see also Pierce v. Thornton, 44 Ind. 235; Armstrong v. Smith, 3 Blackf . 251; Judah v. Dyott, 3Ibid. 324; Black v. Hersch, 18 Ind. 342; Bougher ii. Scobey, 23 Ind. 583; Walpole v. Bishop, 31 Ind. 156; Green v. Chipman, 32 Ind. 195. ' Chapman v. Burt, supra. A. & C— 33. 514 LIABILITY TO CLIENTS NEGLIGENCE. § 309 Another statement of this rule is as follows : An action can- not be maintained against an attorney at law for money collected as such until after a demand and refusal to pay over. It is the duty of the attorney who has collected money to give notice of the fact to his client within a reasonable time. Upon receiving such notice, the client is bound to make demand within a reason- able time, and if he omits to do so he puts the Statute of Lim- itations in motion. But if the attorney neglects to notify his client, the latter may maintain suit without previous demand. The statute will not commence to run unless the client has notice by some means, unless the attorney can show that the client could by ordinary diligence have known of the collection. ^ If, however, the attorney does not account to the client, or is guilty of negligent detention of the fund, or of culpable negli- gence in collection, a demand is not necessary.^ Neither is it necessary if the attorney deny the agency.^ The remedy in cases of conversion by the attorney is an action of trover.* If the attorney account to the client for a balance, a promise to pay the balance is inferred.^ The attorney cannot generally, in suits brought against him by his client, set off collateral claims nor private debts.^ Nor can he set up as a defense the illegal acquisition of the claim by the plaintiff," though if the contract is executory the jjlaintiff cannot recover. § 309. Accounting and payment. — An attorney is not usually liable to an action by his client for money collected 1 Jett V. Hempstead, 25 Ark. 462. 2 Wharton on Agency, sec. 607; Denton u. Embury, 10 ^rk. 228; Glenn (•. Cut- tle, 2 Grant Cas. 273; Cummins v. McLain, 2 Ark. 402; Mardis ;■. Shackleford, 4 Ala. 493. See Coffin v. Coffin, 7 Greenl. 298; Houston v. Frazier, 8 Ala. 81. 8 Ibid. Tillotson v. McCrillis, 11 Vt. 477. ■i Houston V. Frazier, 8 Ala. 81; Colton v. Sharpstein, 14 ^^'is. 446. 5 Cameron v, Clark, 11 Ala. 259. Even without demand, he is liable for money belonging to his client as his client's garnishee. (Staples u. Staples, 4 Greenl. 533; Thayer v. Sherman, 12 Mass. 441.) The attorney must exercise due diligence in transmitting funds to his client, and losses arising from forwarding them by an unauthorized and un- usual mode must be borne by the attorney. (Grayson u. Wilkinson, 13 Miss. 268.) 6 New Castle v. Bellard, 3 Me. 369; Houx )i. Russell, 10 Mo. 246. ' Fogerty v. Jordan, 2 Robt. N . Y. 319. A suit in chancery by a client, against his attorney, for negligence and a failure to pay, when there is no complexity or difficulty in the account, cannot be maintained. (Crothers i'. Lee, 29 Ala, 337. ) § 309 LIABILITY TO CLIENTS — NEGLIGENCE. 615 until after demand made, or a direction to remit.^ He is not considered in default till he receives orders from liis principal.^ But still circumstances may exist which will dispense with the necessity of a demand, as where the attorney has not given notice of the receipt of the money within a reasonable time, as it is his duty to do,^ or exhibits a manifest desire to baffle the client or withhold the money.* If he has doubts whether the debts collected belong to the client he should ask indemnity.^ An action for money had and received lies against an attorney who, having a debt to collect, receives in payment debts on him- self or on others without authority from his principal." And if an attorney collects money for his client and uses the money as his own, he may be held liable for interest thereon during such use.^ So if he receives property from a defendant in sat- isfaction of a client's judgment, and disposes of it without ren- dering an account, he may be charged the amount he received for it as money ;^ and an attorney, like any other agent, is liable in trover for the conversion of the money of his principal.^ 1 Eatibun v. Ingala, 7 Wend. 320; People v. Brotherson, 36 Barb. 662: Pierse V. Thornton, 44 Ind. 235; Cummins v. McLain, 2 Ark. 402; Mardis v. Shackleford, 4 Ala. 493; Voss v. Bachop, 5 Kan. 59; Walradt v. Maynard, 3 Barb. 584; Beards- ley r. Boyd, 37 Me. 180; Black v. Harsh, 18 Ind. 342. 2 Krause v. Dorrance, 10 Pa. 462; Cummins v. McLain, 2 Ark. 402. 8 Glenn v. Cuttle, 2 Grant Cas. 273; Denton v. Embury, 10 Ark. 228. * Krause ■«. Dorrance, Cummins v. McLain, supra; Mardis v. Shackleford, 4 Ala. 493. 5 Marvin v. Bllwood, 11 Paige, 365; Sims v. Brown, 6 Thomp. & C. 5. Where an attorney denies his liability to pay, and sets up a claim against his client exceeding the amount collected,. this is equivalent to a waiver of a demand. (Walradt v. Maynard, 3 Barb. 584.) 6 Houx V. Russell, 10 Mo. 246. ' Mansfield v. Wilkerson, 26 Iowa, 482; Walpole v. Bishop, 31 Ind. 156: Hover V. Heath, 3 Hun, 283. 8 Christy w. Douglass, Wright, 485. 8 Cotton !,'. Sharpstein, 14 Wis. 226. Where an attorney appears and defends for another, and receives money as attorney due to his assumed client, he is es- topped to deny, in an action by the latter for the money, that he was his attorney. (M'Farland v. Crary, 8 Cowen, 253.) A complaint alleged that the plaintiff, together with another party, had placed, in the hands of the defendant, for collection, a large amount of claims; that these claims were all collectible, but were unaccounted for by the defendant, who had refused to render any account thereof to the plaintiff upon his demand. Seld, that the plaintiff could not re- cover of the attorney the value of the notes, or the notes themselves, but that he was entitled to an accounting, and to. receive any money that had been col- lected. (Bougher v. Scobey, 23 Ind. 583.) Persons depositing notes with attor- neys for collection, have a right to demand and have an accounting, to know the 516 LIABILITY TO CLIENTS NEGLIGENCE. § 310 § 310. Disclosing secrets. — An attorney professionally en- trusted with the secrets and confidential disclosures of his cli- ents is civilly liable in an action for damages for making them known to the opposing party. Assisting the other party to obtain execution,^ disclosing defects in his client's title, by reason of which the client is put to the expense of litigation or delayed in raising money, or compelled to give a higher rate of interest, are all in the same category, and are breaches of duty, fixing legal responsibility on the attorney. He is not liable for dis- closing in evidence circumstances not confidentially communi- cated ; as for example, the execution of a deed, or a non-profes- sional conversation after the business with the client has closed.^ He is equally liable, however, if the communication be confi- dentially made, whether it is made in an action or in the course of a private negotiation where the services were retained.^ Attorneys are liable for betraying confidences reposed in them, and especially for disclosing to the opponents in a cause the evi- dence in their clients' cases, or other secrets intrusted to them. In the first place they are guilty of a gross breach of moral duty ; in the second, they are guilty of gross violation of pro- fessional duty and professional decency ; and in the third place they are civilly liable in damages to their clients.* It is gratify- ing to find that the cases on this subject are exceedingly few. We have seen ^ what communications are considered privileged, and what are not, and that it is not necessary for them to be privileged that they should be made in an action or suit, or even in contemplation of one;^ that communications made in the course condition of the claims and to receive the amounts collected, subject only to just exceptions. (Bougher w. Scobey, 19 Ind. 151.) 1 Lawrence v, Harrison, Styles, 426; Taylor v. Blacklow, 3 Bing. N. C. 235; 3 Scott, 614. 2 Walker v. Wildman, 6 Madd. 47; Bramwell v. Lucas, 2 Barn. & C. 745; Cob- den V. Kendrick, 4 T. R. 431, 3 Greenough v. Gaskill, 1 Mylne & K. 98. 4 Taylor u. Blacklow, 3 Bing. (N. C.) 249; "Wilson «. Troup, 7 Johns. Ch. 25; 2 Cowen, 195; Rhoades v. Selin, 4 "Wash. C. C. 718; Chirac v. Reinicker, 11 "Wheat. 280; Rogers v. Dare, "Wright, 136. 6 Ante, Chap. VIII. 6 Of course the attorney is not liable for disclosing in evidence communica- tions not confidentially communicated. ("Walker ti. "Wildman, 6 Madd. 47; Bram- mellv. Lucas, 2 Barn. & C. 745; Riggs v. Denniston, 3 Johns. Cas. 168; Heister M. Pavia, 3 Yeates, 4; Jordan v. Hess, 13 Johns. 492; Hoffman v. Smith, 1 Caiues, 157.) § 311 LIABILITY TO CLIENTS NEGLIGENCE. 517 of a private negotiation, when an attorney's services are retained, are equally within the rule. In case of a disclosure of any of these privileged communications, (the privilege, as we have seen, being for the benefit of the client) the attorney is liable in an action for betraying the confidence reposed in him by his cli- ent.^ The courts may also in various ways prevent an attorney from making such disclosures when they are threatened. They may refuse to hear him testify, they may restrain him by injunc- tion, or even strike his name from the roll,^ just as they may pre- vent another outrage upon a client, should it be threatened, viz : acting for opposite parties, or for both parties, when their inter- ests are conflicting.^ But if the attorney has been discharged from his original employment, the courts will not generally inter- fere, unless it clearly appear that he has obtained information in his former character which it would be prejudicial to the cause of his former client to communicate.* § 311. Investment of money — Sufficiency of securities — Investigation of titles. — If an attorney invests his client's money on security which proves altogether insufiicient — as a question of law, not of money value — this is such gross negli- gence as almost to amount to fraud, and is sufficient to fix his liability ; and the client can claim the amount in a suit for the administration of the attorney's estate, without establishing the right at law.^ And if an attorney employed to record a mort- gage neglects to do so until after other subsequent incumbrances have been recorded, he is liable immediately to the mortgagee for all the damages which are likely to be sustained by his de- fault.^ And so if the attorney is employed to collect a debt, and instead of suing takes a note and mortgage from the debtor, although with the client's consent, but negligently fails to dis- 1 Taylor v. Blacklow, 3 Bing. (N. C.) 235. 2 Cholmondeley v. Clinton, 19 Yes. 261; Bolton v. Liverpool, 1 JSIylne & K. 88; Jackson v. French, 3 Wend. 339; Andrews v. Solomon, Peters C. C. 356. 3 Peter v. Watkins, 3 Bing. (N. C.) 421; Harvey v. Mount, 8 Beav. 439; Clay v. Williams, 2 Munf . 105. i Kobertsont). Marriott, 2 Cromp. &M. 183; Beer jj.Ward, 1 Jacob, 77; Bricheno V. Thorpe, 1 Jacob, 300; Grissell v. Peto, 9 Bing. 1; Eobinson v. MuUett, 4 Price, 353. 6 Smith V. Pooock, 23 Eng. L. & B. 470; Arnold v. Robertson, 3 Daly, 298. 6 Miller v. Wilson, 24 Pa. 114. 518 LIABILITY TO CLIENTS NEGLIGENCE. § 311 cover a previous petition of insolvency, and to make due search, after his own suspicions are aroused, and so the debt be lost.^ And where an English attorney, in laying a case before counsel, omitted certain d6eds from an abstract, and failed to state the whole chain of title, so that the counsel gave an opinion which he would not have done had he known all the facts, and to the effect that the title was good, when it turned out to be bad ; the jury were warranted in finding the attorney guilty of neg- ligence so as to make him liable.^ But where a conveyancer, with no want of ordinary skill and caution, passed a title to cer- tain ground-rents incumbered by an unliquidated judgment, after taking lesral counsel, and being informed therein that the title was clear, it was held an error of judgment for which he, as in case of an attorney, could not be liable, any more than in any case of reasonable doubt.^ If searches as to title are required, omission to make them is negligence, for which the attorney may be liable.* But a con- veyancer is justified in taking the opinion of counsel as to the existence of incumbrances. The case, however, must be fairly stated to the counsel.^ An attorney employed to examine a title is not required to consider the value of the property incum- bered, nor is he bound to caution his client against improbable contingencies of loss.^ When an attorney advises a client who advances money on the security of a legacy given to the borrower under a will, he is not warranted in relying upon a partial extract from the will, but should examine the will itself.' Personal representatives of attorneys have been held liable for the negligence of decedents in failing to properly investigate titles, and in ascertaining the invalidity of securities.^ Attorneys may be responsible for the 1 Cooper V. Stephenson, 12 Eng, L. & B, 403. '^ Ireson v. Pearman, 3 Barn, ik, C. 799. 3 Watson «. Muirliead, 57 Pa. Ifil. * Wharton on Agency, sec. 697; Cooper ?■. Stephenson, 21 Law J. N. S. Q. B. 292: Watts f. Porter, 3 El. & B. 743; Miller v. Wilson, 24 Pa. 114; Oilman «. Hovey, 2fi Mo. 280; Gore v. Brazier, 3 Mass. k3; Sprague v. Baker, 17 Mass. 586; Clark It. Marshall, 34 Mo. 429. 5 Andrew v. Hawley, 23 L. T. E.x. 323; Watson c. Muirhead, 57 Pa. 161. «Hayne v. Rhodes, 8 Q, B. 342; Chapman v. Chapman, L. R. 9 Ex. 276; Brum- bridge v. Massey, 28 Law J. N. S. Ex. 59. ' Wilson «. Tucker, 3 Stark. 154. 8 Knights V. Quarles, 4 Moore, 532; 2 Brod. & B. 102; Allen v. Clark, 11 Week. R. 304; 7L. T. N. S. 781. §311 LIABILITY TO, CLIENTS — NEGLIGENCK. 519 consequences of allowing their clients to execute unusual cove- nants, without explaining the liability incurred thereby.^ The attorney, it has been held, is liable for disclosing defects in his client's title to the proposed lender, by which the mortgagor is delayed in procuring money, and compelled to pay a high rate of interest, and this where the attorney had previously had the proposed mortgagee for a client.^ It appears that an attorney may be liable for mistakes in points of practice ; ^ but not in cases of doubtful or unsettled points of practice.* In actions of negligence for failing to properly investigate securities, if the declaration state that the plaintiff retained the defendant, an attorney, to see if a certain security was good, and that he accepted the retainer and neglected his duty, and represented the security to be good, and that plaintiff advanced his money, and that the security was bad, by means of which the plaintiff lost, etc., it states a sufficient cause of action.^ The declaration- should allege the particular character in which the attorney is retained, or it is bad, as that he was retained as attorney, etc.^ The retainer to investigate a title, or see if a security is sufficient, does not involve or require any inquiry upon the part of the attorney as to the money value of the se- curity, without an express agreement to that eifect. What is meant by " good and sufficient " is " good " or " sufficient " in point of law, not of money value." Where the attorney is employed to invest the money and Jind the proper security a different rule prevails, and of course it is the duty of an attorney in any event to apprise his client of any peculiar circumstances coming to his knowledge in the transac- 1 Stannard v. UUitliorne, 10 Bing. 491; 4 Moore & S. 359. 2 Taylor v. Blacklow, 3 Bing. (N. C.) 235; 3 Scott, 614; 3 Hodges, 224. 8 Eussell V. Palmer, 2 Wils. 325. •' Pitt I!. Yalden, 4 Burr. 2060; Laldler v. Elliott, 3 Barn. & C. 738; 5 Dowl. & E. 635; Bakie v. Ohandless, 3 Camp. 17, 19; Compton v. Cliandless, Ibid. 6 Howell V. Young, 5 B. & P. 259; 8 Dowl. & B. 14; 2 Car. & P. 238; Whitehead V. Greetham, 2 Bing. 464; SlcClel. & Y. 205; 10 Moore, 183; Hanlon r.. Murray, 12 I. E. C. L. 161. 6 Dartnall v. Howard, 6 Dowl. & E. 438; 4 Barn, & C. 345. ' Hayne v. Ehodes, 8 Q. B, 342 ; 10 Jur. 71 ; 15 Law J. Q. B. 137. See, generally, Waine v. Kempster, 1 Fost. & F, 695; Brumbridge v. Massey, 28 Law J. Ex. 59; 32 L. T. 108; Cooper v. Stephenson, 16 Jur. 424; 21 Law J., Q. B. 292, 620 LIABILITY TO CLIENTS-r-NEGLIGENCE. §§ 312-13 tion in which he is engaged, as if any obvious insufficiency of value should appear upon the title deeds. ^ § 312. Advice as to titles. — Defective advice as to titles constitutes negligence involving liability ; and whether the ad- viser ranks as a conveyancer or as a counsel, his liability is the same. But he is not bound to perfect accuracy nor perfect care. He is not expected to anticipate rulings overturning the law as it existed when he gave his opinion. It is sufficient if he accept the law accepted by good professional men of his particular class at his particular place. He is neither the insurer of the papers committed to his care, nor of their accuracy. If through his carelessness, or that of his clerk, loss ensues, he is liable.^ A bill in equity will not lie against a solicitor for negligence in investigating a title. A court of equity will not compel a so- licitor to take the mortgage security off his client's hands, and find the money necessary for the purpose.^ If an attorney be lulled by the assurance of his client into a persuasion that the security on which such client proposes to advance money is good, so that he abates his vigilance in the inquiry as to its va- lidity, his liability for negligence is discharged.* § 313. ElTect of non-payment of fees — Gratuitous ser- vices. — Notwithstanding an old case to the contrary,^ an attor- 1 Dartnall v. Howard, 4 Barn. & C. 345; Craig v. Watson, 8 Beav. 247. See In re Valpy, Law R. 7 Ch. 289; Miller v. Wilson, 24 Pa. 114. 2 Watson V. Muirhead, 57 Pa. 161; Wharton on Agency, sec. 597; Fotts v. But- ton, 8 Beav. 493; Taylor v. Gorman, 4 Ir. Bq. 550; Wilson v. Tucker, 3 Stark. 154; Dowl. & E. N. P. 0. 30; Knights v. Quarles, 4 Moore, 532; S. C. 2 B. &. B. 102; Allen V. Clark, 7 L. T. N". S. 781; 1 N. K. 358; Drax v. Scroupe, 1 D. P. C. 69; 2 B. & A. 581; Stannard v. Ullithorne, 10 Bing, 491; S. C. 4 Moore & S. 539; Ire- son V. Pearman, 5 Dowl. & E. 687; 3 Barn. & C. 799; Howell v. Young, 5 Bos. & P. 259; 8 Dowl. & E. 14; 2 Car. & P. 238; Whitehead v. Greetham, 2 Bing. 464; 10 Moore, 183; Dartnell v. Howard, 6 Dowl. & E. 438; 4 Barn. & C. 345; Brum- bridge v. Massey, 28 Law J. Ex. 59; Cooper n. Stephenson, 21 Law J. Q. B. 292; Hayne v. Ehodes, 8 Q. B. 342. 8 British Company v. Cobbold, 19 Law Eep. Eq. 627; Mare v. Lewis, Ir. L. E. 4 Eq. 219. See Smith v. Pococke, 2 Drew, 197; Chapman «. Chapman, Law E. 9 Eq. 276; Craig v. Watson, 8 Beav. 427: Dixon v. Wilkinson, 4 De Gex & J. 508; V. Jolland, 8 Ves. 72. 4 1 Dowl. & E. 30. Slander of title. — An attorney of a party claiming title to premises put up to sale is not liable in an action of slander of title, if he, bona fide, though without authority, makes such objections to the vendor's title as his principal would have been authorized in making. (Watson v. Eeynolds, 1 Moody & M. 1.) 6 Mordeoai v. Solomon, Sayer, 172. § 313 LIABILITY TO CLIENTS — NEGLIGENCE. 521 ney is not bound to proceed upon a general retainer without being provided with funds ; and so where a motion was made to compel an attorney to proceed in a suit upon the ground that he might be compelled to proceed, though he might lose his costs, it appearing that considerable costs had accrued in the progress of the suit, and that the attorney for the plaintiff refused to pro- ceed further until he was paid the amount. The court said : " The conduct of the attorney is justifiable. He is not bound to go on and expend money for his client without being secured. The cases cited show merely that the court will compel an attor- ney to do his duty ; but it is not his duty to expend money for his client without being reimbursed." ^ But if he has waived the matter of compensation, the case is different, and in an action against an attorney for neglect in the management of a suit, it is not necessary to aver that the plaintiff had paid him or secured him a fee ; an averment that the defendant undertook to prose- cute the suit for a sum thereafter to be paid is sufficient ; nor is it a defense that the attorney undertook the case without con- sideration. It is enough that he undertook to conduct the suit, and in his management of it was guilty of such a neglect of his duty as to subject the plaintiff to a loss. After this it is not competent for him to allege a want of consideration.^ It does not at all interfere with the attorney's liability that the services are gratuitous. Confidence bestowed and acccepted is enough. Still more is the attorney liable for damages for officious inter- meddling with a case.^ The attorney should not abandon the cause, on the ground of the want of money, without giving his client reasonable notice ; for if he do, he will be liable to an action for negligence, and he will be deprived of his right to his costs.* And it seems that an attorney who declines to proceed with an action cannot retain his client's papers under a claim of lien.^ But in a late 1 Castro V. Benuet, 2 Johns. 286; Gleason v. Clark, 9 Cow. .57. See also Wads- worth V. Marshall, 2 Cromp. & J. 665; Eowson v. Earle, Moody & M. 538; "Van Sandau v. Brown, 9 Bing. 402; 2 Moore & S. 543; 1 Dowl. O. S. 715; Lawrence v. Pot1s,6Car. &P. 428. 2 Eccles V. Stephenson, 3 Bibh, 517; Stephens v. White, 2 Wash. Va. 203. 8 Wharton on Negligence, sec. 436; Wharton on Agency, sec. 600; Bradt v. Walton, 8 Johns. 298; O'Hara v. Brophey, 24 How. Pr. 279. 4 Hoby ('. Built, 3 Barn. & Adol. 350; Lawrence v. Potts, 6 Car. & P. 428; Nich- ols ?;. Wilson, 11 Mees. & W. 106; S. C. 2 Dowl. N. S. 715. 5 Van Sandau v. Brown, 9 Bing. 402; S. C. 2 Moore & S. 543; S. C. IDowl. O. S. 715. 522 LIABILITY TO CLIENTS NEGLIGENCE. § 313 case in chancery, it was said by Lord Cottenham that Lord Eldon's opinion, that a solicitor discharging himself cannot claim a lien, must be understood as meaning, not that the solic- itor loses his lien altogether, but that he cannot set it up so as to prevent his client proceeding in the cause. The rule is, that the solicitor shall have every security not inconsistent with the progress of the cause ; but he will not be permitted to impose upon the plaintiff the necessity of carrying on the cause in an expensive, inconvenient, and disadvantageous manner. He will, therefore, be ordered, (on the petition of his client) to hand over to the new solicitor all proceedings and documents necessary for the hearing without prejudice to his lien, which are to be returned undefaced within a fixed time after the hearing.^ Though in a more recent case before Lord Langdale, master of the rolls, where, after demurrer to a bill for want of equity by two material de- fendants had been allowed, the solicitor for the complainant re- fused to proceed in the cause without payment of his bill of costs, and the complainant appointed a new solicitor : it was held that, under the circumstances, the original solicitor was not bound to deliver over the papers in his possession, without an assurance that the suit would be prosecuted by the new solicitor.^ The obligation of an attorney is to his client and not to cas- ual inquirers,^ but it is not necessary to fix the liability, that there be a compensation paid or to be paid.* An attorney may be liable though his services were rendered gratuitously, but an attorney so acting is liable only for gross negligence.^ As a matter of pleading, it is sufficient to state that the defendant was retained as attorney, without stating the consideration.^ An averment that defendant undertook to prosecute the suit for a sum thereafter to be paid is sufficient." The plaintiff may frame his action in assumpsit or case for the breach of duty.* 1 Heslop H. Metcalf , 3 Mylne & C. 183. 2 Caine r. Martin, 4 Lond. Jur. 500; 2 Beav. 58i. 8 Pish ». Kelly, 17 Com. B. N. S. 196. * Donaldson v. Holdane, 7 Clark & F. 762. 5 Bourne v. Diggles, 2 Chit. 311; Whitehead v. Greetham, 2 Bing. 404. 6 Bourne v. Diggles, 2 Chit. 311; Whitehead c. Groetliam, 2 Bing. 464. ' Eccles!'. Stephenson, 3 Bibb, 517;"Stephensou v. "White, 2 Wash. 203; Bing- hart V. Gardner, 3 Barb. 64. 8 2 Chit. PI. 373; Church v. Mumford, 11 .Johns. 479; Stimpson v. Sprague, 6 Me. 470. § 314 LIABILITY TO CLIENTS NEGLIGENCE. 523 An attorney who takes legal proceedings in the name of another without authority is, of course, liable to such person, or to any other person who is immediately prejudiced thereby. ' Where solicitors are in partnership, they cannot dissolve their partnership as against the client without his consent, so as to discharge the retiring partner from liability ; much less can the latter accept a retainer from the opposite party.^ § 314. Liability of law partners. — Attorneys practicing in partnership are equally responsible for money collected and not paid over, though one of them did not participate in the particular transaction.^ When two attorneys are in partner- ship, and one receives money, demand on him is a demand on both, and renders both liable.* Where two attorneys are in part- nership, and one does the business of a client unskillfully, both are liable to him in damages;^ and it is said that partnerships between attorneys are subject to the incidents to mercantile partnerships to this extent, that one partner is liable upon the contracts made by the other within the scope of the partnership business, and for his negligence in respect to a partnership con- tract; and a right of action against the firm survives against the survivor alone.^ And where a demand is placed in the hands of two attorneys, in partnership to collect, and before the money is collected on the execution the attorneys dissolve partnership, and afterward one of them receives the money from the sheriif, and gives a receipt in his own. name, and neglects to pay the money over to the client, both the attorneys are liable as part- ners.'^ Either partner may attend to business intrusted to the firm ; but if the firm contracts with a client for the personal 1 Westaway v. Frost, 17 Law J. Q. B. 286; Bradt v. Walton, 8 Johns. 289; O'Hara v. Brophy, 2i How. Pr. 379: Field v. Gibbs, Peters C. C. 155; Munni- kayson v. Dorset, 2 Har. & G. 374; Cort r. Sheldon, 1 Tyler, 300; Ellsworth «. Campbell, 31 Barb. 134; Hubbard v. Phillips, 13 Mees. & W. 702; Hosldnsti. Phillips, 16 Law J. Q. B. 333; Duper v. Keeling, 4 Car. & P. 102: Andrews?;. Hawley, 26 L.aw J. Ex. 323; Cottrell v. Jones, 11 Com. B. 713. 2 Cholmondeley o. Clinton, Coop. 80; 19 Ves. 261; Coolc o. Rhodes, 19 Ves. 273n; Walker «. Goodrich, 16111. 341. 3 Dwight lu Simon, 4 La. An. 490. ^ McFarland v. Crary, 8 Cowen, 253. 6 Warner K. Griswold, 8 Wend. 665. " Livingston v. Cox, 5 Pa. 360. " Poole V. Gist, 4 McCord, 259. 624 LIABILITY TO CLIENTS NEGLIGENCE. § 314 services of a particular partner, and he fails to perform them, it is a breach of contract, yet the damages for such breach will be but nominal, if another partner shall perform the duty with due professional skill and without injury to the client. A contract with a firm for the services of a particular partner, at a stipu- lated fee, cannot be broken by the client upon the death of such partner, without tendering to the survivor a fair compensation for services already rendered, and if the survivor render the services with professional skill and diligence, he is entitled to the entire fee.^ Where one of a firm of solicitors received from a client a sum of money for which a receipt was given in the name of the firm, stating that part of the money was in payment of certain costs due to the firm, and that the residue was to make arrangements with the client's creditors, and the solicitor misap- propriated the money, the court held that the transaction with the client was within the scope of the partnership business, and that the partners in the firm were jointly and severally liable to make good the amount, and that all the partners were necessary parties to a suit for that purpose.^ And, generally, money re- ceived by one member of a firm of solicitors in the course of the management and settlement of the affairs of a client of the firm, is money paid to the firm in the course of their professional business ; and, consequently, the members of the firm are liable to make good any loss occasioned by the negligence or dishon- esty of their partner by whom the money was received.^ And it has been decided in England that a court of equity will grant relief in such a case.* An oflficer having on an execution against a corporation ar- rested a person who was supposed to be a member thereof, but who stated that he was not, obtained from the creditor's attorney a promise of indemnity for committing him. It was held that such promise was not illegal. An attorney at law cannot bind his copartner by such a promise ; but the partnership is a cir- 1 Smith V. Hill, 8 Eng. Ark. 173. 2 Atkinson v. Mackreth, 2 Law E. Eq. 570. See Plumer v. Gregory, 18 Law E 621. 3 Earl of McDonald ?;. Masterman, 7 Law E. Eq, 504; Dwight v. Simon, 4 La. An. 490; Wilkinson w. Griswold, 20 Miss. 669; Perry u, Clarke, 5 How. (Miss.) 502; Butler v. Jones, 7 Ibid. 587. * St. Aubyn v. Smart, 5 Law E. Eq. 183. §§ 315-16 LIABILITY TO CLIENTS NEGLIGENCE. 525 cumstance from which, with other circumstances, it may be in-- ferred he intended to act for both, and where the copartner sub- sequently to the commitment adopted and ratified the promise, it was held the officer maintained an action against them jointly.^ Where a claim was placed for collection in the hands of two attorneys who were partners, a judgment was obtained, land of the debtor sold under execution, and redemption from the sale by paying the money to the sheriff, who paid it over to one of the attorneys. Prior to the redemption the land copartnership between the attorneys was dissolved, yet both partners were held liable to the client for the money thus received by one partner after the dissolution. So, where a client retains two at- torneys who are partners, he is entitled to the services of both until the business is completed, notwithstanding a dissolution pending the business.^ § 315. Attorney's books. — In an action against an attor- ney for negligence, the client cannot compel the production of the attorney's books on a mere suggestion of the client's belief that they contain entries relating to the matters complained of. The party must show by affidavit that there is some one docu- ment in the possession or power of his adversary, to the inspec- tion of which he is entitled.^ § 316. Liability for abandonment of suit. — An attorney/ when employed is bound to conduct a suit to a close, and he ( cannot recover compensation until the suit is closed /and he is not bound to proceed if his intermediate expenses are not paid.* He is liable if he abandon the suit without reasonable cause and notice. Though the attorney may not be at liberty suddenly to "•ive up his employment, because a client does .not on every oc- casion comply with his demand for money, he may at any time give such notice on any reasonable cause, as the want of funds, dissolution of partnership, or his retirement from business, or 1 Marsh v. Gold, 2 Pick. 284. 2 Smyth V. Harvie, 31 III. 62. s Evans v. Lems, 1 Law B. Com. P. 656. "Nichollsu. Wilson, 2 Dowl. N. S. 1031; 12 L. J. Ex. 266; 11 Mees. & W. 106; Harris v. Osborn, 2 Cromp. & M. 629; Whitehead v. Lord, 7 Ex. 691 ; Van Sandan V. Browne, 9 Bing. 402; 2 Moore & S. 543; 1 D. P. C. 715; Hobey «. Built, 2 Barn. & Adol. 350; "Wadsworth v. Marshall, 2 Cromp. & J. 665. 526 LIABILITY TO CLIENTS NEGLIGENCE. §§ 317-18 the insolvency of his client, and may recover his costs for what he has done.^ The attorney is liable if he make erroneous or negligent statements of any affidavits proper in the case, or as to the truth of pleas in abatement, or to any fact which comes to hia knowledge in a professional character.^ § 317. Other liabilities. — If an attorney contract to collect a debt, he is liable for the negligence of his agents by which the debt is lost. The reason is, that it is a case of specific con- tract on the pai-t of the attorney, by which he virtually guaran- tees the collection.^ As to papers, the attorney is not an insurer ; but he must exercise toward them such care and diligence as good experts in his department are, under similar circumstances, accustomed to use.* § 318. Not liable for acts not -within the scope of their profession. — Attorneys are not liable for undertakings not im- plied by their profession, as demanding payment of a note, and giving notice to the indorser.^ Nor for failure to file a note which he has received for collection by suit, as a claim against the estate of the maker, upon the death and declaration of the insolvency of the estate of the latter, when the facts occurred after he received tiic note, and without his knowledge.® Nor for taking note.-; of tliird parties, who proved to be insolvent, when the instructions were to do the best he could with the de- mand, and he supposed them good.'^ Nor for forbearing to bring a suit where the parties had agreed to leave one of the matters 1 Eowson V. Erie, 1 M. & Meek, 538; Van Sandan v. Browne, 9 Bing. 402; S. C. 2 Moore & S. 543; AVadsworth v. Marshall, 2 Cromp. & J. 665; Hobey v. Built, 3 Barn. &■ Adol. 350. See Mordecal t). Solomon, Sayer, 173; Menzies v. Rodri- guez, 1 Price, 92; 1 Sid. 31. 2 Eowbottom V. Duffree, 5 Dowl. P. C. 557; Brown v. Austin, 4 IWd. 161; Nash V. Swinburn,3 Scott N. S. 326; 1 Dowl. N. S. 190; Lumley v. Foster, Barnes, 344; Merrington v. A. Beckett, 2 Barn. & C. 81. 8 Wharton on Agency, sec. 602; Eiddle v. Hoffman, 3 Pa. 224; Bradstreett). Everson, 72 Pa. 124. ■1 Wharton on Agency, sec. 602; Riddle v. Hoffman, 3 Pa. 224; Bradstreet v. Everson, 72 Pa. 124; Reeve v. Palmer, 5 Com. B. N. S. HI; North \\'. R. E. v. Sharp, 10 Ex. 451; Wilmouth v. Elkinton, 1 Nev. & M. 749; In re Thompson, 20 Beav. 545. 6 Odlin V. Stetson, 17 Me. 244; Huglies v. Boyce, 2 La. An. 803. 6 Stubbs V. Beene, 37 Ala. 627. ' Wright V. Ligon, 1 Harp. Eq. 166. § 319 LIABILITY TO CLIENTS NEGLIGENCE. 527 in dispute to arbitration, the decision of which would render an action unnecessary.^ Under a general retainer, an attorney is not bound to take any steps in his client's business not implied by his profession. Un- der a general employment to collect a note placed in his hands before maturity, it has been held that an attorney is not bound to demand payment from the maker and give notice to the in- dorser, it not being an undertaking implied. But if the attor- ney is retained to do a particular act, and is directed at the same time to do whatever is needful in the matter, he is bound to take such steps as have immediate relation to the act for which he is specially retained.^ In England, it is the duty of the attorney to submit to the opinion of counsel all mere questions of law, the forms of pleading, the kind of evidence to be adduced. If he does not, and acts upon his own opinion, he is responsible for the conse- quences of error committed ; while the assistance of counsel gen- erally relieves him from liability,^ as where he is advised by counsel that certain proofs are unnecessary. But in matters peculiarly within the province of an attorney, and a knowledge of which he is presumed to possess, the attorney cannot absolve himself from liability by consulting counsel.* § 319. Measure of damages. — In actions against attorneys for neo-lio-ence or wronffs, the debt lost and cost sustained through their negligence furnish, when the action can be maintained, the obvious measure of damages, where this measure definitely exists.^ In other cases the plaintiff is entitled to be in the same position as if the attorney had done his duty.^ Where an at- torney, who had been employed to complete the purchase of leasehold property, which had been bought at auction by his 1 Hogg!). Martin, Eiley, 156. 2 Odlin V. Stetson, 17 Me. 244; Dawson v. Lawley, 4 Esp. 65. 3 Godefroy v. Dalton, 6 Bing. 460; Manning v. Wilkins, 12 Law T. 249; Hart v. Frame, 6 Clark & F. 193; Stevenson ti. Rowland, 2 Dowl. & C. 104. ■t Godefroy «. Dalton, supra; Goodman v. Walker, 30 Ala. N. S. 482; Small- wood V. Norton, 20 Me. 83. 5 Godefroy v. Jay, 7 Bing. 413; Hoby v. Built, 3 Barn. & Adol. 350; Langdon V. Godfrey, 4 Fost. & F. 445; Simmons v. Rose— Re Ward, 31 Beav. 1; Gover- nor V. Raley, 34 Ga. 173; Nis'bet v. Lawson, 1 Ga. 275. 6 Tatham v. Lewis, 65 Pa. 65. 528 LIABILITY TO CLIENTS NEGLIGENCE. § ^^^ client on conditions requiring that the purchaser should take an under-lease and not demand an abstract of the vendor's title, nor inquire into that of the lessor, made no inquiries, but sim- ply got what purported to be a lease executed by the pretended seller, but which recited no title, the pretended seller having none, and the purchaser was evicted by the real owner ; it was held that the attorney had been guilty of negligence, for which his estate was liable in damages, the proper measure of which was the sum which the plaintiff, who had bought back the prop- erty, was obliged to pay to get the title, with interest and with- out deduction foi; rent, as he was liable over for mesne profits during the time he had occupied the premises rent-free.-' But where, owing to the attorney's neglect to charge the judgment- debtor in execution at the proper time, the latter was discharged by supersedeas, there being evidence that the judgment-debtor was not wholly insolvent, a direction to the jury to find the whole debt was held erroneous, and their verdict for that amount set aside.^ Any fact which will tend to reduce the debt which the attorney failed to collect below the nominal amount, is proper to be considered by the jury.^ Where the declaration alleged that the plaintiff was forced to pay a sum of money by reason of the defendant's negligence, it was held he could not recover for a mere liability to make further payments in addition to what he had actually paid.* An attorney at law executed to a deputy sheriff in the name of the plaintiff an agreement to hold the sheriff harmless for sell- ing certain goods under execution, and from all costs, damages, and expenses whatever resulting or accruing by reason of the sale. In an action by the sheriff against the attorney for falsely representing that he had authority so to execute it, it was held that the jury might consider on the question of damages a judg- ment recovered against and paid by the plaintiff for taking and selling the property mentioned in the agreement, deducting therefrom so much as consisted of damages resulting from at- tachments made by the plaintiff after the making of the con- 1 Allen V. Clark, 7 Law T. R. Q. B. 781; S. C. 11 W. R. 304. 2 Russell V. Palmer, 2 Wils. 325. 8 Orooker v. Hutchinson, 2 Chip. 117; Huntington v. Eumnill, 3 Day, 388. < Jones V. Lewis, 9 Dowl. Pr. 143; Howell u. Young, 5 Barn. & C. 259. § 320 LIABILITY TO CLIENTS NEGLIGENCE. 629 tract, or if that amount could not be ascertained, the rule of damages might be the amount of the judgments in favor of the parties whose names had been signed by the defendant to the contract, and which had been satisfied by the application thereon of the avails of the sale of the property so taken by the plaint- iff. The plaintiff was, moreover, entitled to recover the ex- penses of sundry litigations directly necessitated by the fraud, and proper compensation for his own time and services in the matter, besides interest on his expenses up to the verdict.^ When an attorney is chargeable with negligence his contract is violated, and an action lies immediately, though only nominal damages could be proved or recovered ; but the proof of actual damage may extend to facts growing out of the injury, even up to the day of the verdict.^ The attorney who may be chargea- ble for negligence is liable only to the extent of the injury his client has received, as if he be employed to defend a suit and fail to do so, he is liable to the party injured to the extent of the damages actually suffered : if he can show that the defense he was employed to make was not a good one, he is liable only for nominal damages.^ When an attorney is sued by his client for negligence and unskillfulness he cannot set up champerty in the contract as a defense to the suit ; nor be allowed to prove that he consulted a distinguished attorney respecting the proper course to be pur- sued by him, or that the arrangement made by him was, in the opinion of the witness, the best that could be made for his cli- ent's interest.* § 320. Operation of Statutes of Limitation. — In actions for negligence, the attorney may avail himself of the Statutes of Limitation, and the cause of action accrues at the time of the breach of duty or promise by defendant, and the statute begins to run from that time, and not from the time of the plaintiff's discovery of the breach : as where it was complained that the de- fendant did not diligently and sufficiently make a search in the 1 Jones V. Wolcott, 2 Allen, 247. 2 Wilcox V. Plummer, 4 Peters, 172. 3 Suydam v. Vance, 2 McLean, 99; Grayson v. Wilkinson, 13 Miss. 268. * Goodman v. Walker, 30 Ala. 482. A. & C— 34. 630 LIABILITY TO CLIENTS NEGLIGENCE. § 320 Bank of England to ascertain whether certain stock was stand- ing in the name of certain persons, the defendant having been employed in his character of attorney to do so. The omission to search took place more than the statutory time before the ac- tion was brought, although it was not discovered by the plaintiff until within the time. The statute was held a complete de- fense.^ So where the plaintiff, in a declaration of assumpsit, stated that he employed the defendant to invest and lay out plaintiff's money in an annuity on a good and sufficient security, which he promised to do, but laid it out in an invalid and fraud- ulent security, the promise was considered the gist of the action, and the statute regarded as a complete bar, although the action was commenced within the statutory period from the time the act was discovered, and the defendant knew that the security was invalid at the time the annuity was granted.^ In an action on the case against an attorney retained by plaintiff to ascertain whether a warrant of attorney, and free- hold and leasehold property to be secured by mortgage, were a sufficient security for :£ 3,000 and interest ; but afterwards (the interest to that time having been regularly paid) it was discov- ered that the warrant of attorney and mortgages were not a suf- ficient security : it was held that the misconduct or negligence of the attorney constituted the cause of action. The statute' began to run from the time when the defendant had been guilty of such misconduct, and not from the time when it was discovered.^ The Statute of Limitations in an action against an attorney for neglect to collect money begins to run from the time the at- torney first became liable. Where an attorney gave a receipt for a " note for collection," the statute was held not to have commenced to run in his favor from the date of the note, but from a reasonable time afterward for beginning proceedings. He is allowed a reasonable discretion in the absence of peremp- tory instructions. What is reasonable depends upon circum- stances, and is a question for the jury. Where the duty is im- mediate, the right of action arises, and the statute begins to run from the attorney's receipt of the money.* 1 Short V. MacCarthy, 3 Barn. & Aid. G20. 2 Brown v. Howard, 4 Moore, SOB. 3 Howell V. Young, 5 Barn. & C. 259. * Ehlnes v. Evans, 66 Pa. 1«5. LIABILITY OF CLIENT TO ATTORNEY. 531 CHAPTER XIII. LIABILITY OF CLIENTS TO ATTOKNEYS— COMPENSATION OF AT- TORNEYS FOR SERVICES RENDERED— REMEDIES OF ATTOR- NEYS AGAINST CLIENTS TO RECOVER OR SECURE COMPEN- SATION—REMEDY BY ACTION-REMEDY BY LIEN. I. — REMEDY BY ACTION. § 321. The Roman Honorarium. § 322. In the Middle Ages. § 323. In England. § 324. Solicitors' fees under the Judicature Acts. § 325. Solicitors' fees in England under agreements. § 326. Bills of cost, under the English system. § 327. Delivery of the bill. § 328. Requisites of the bill. § 329. Propriety of tlie charges. § 330. Liability to be taxed. § 331. Referring bill to taxation. § 332. Taxation of bill independent of statutory provisions. § 333. Compensation in the LTnited States. § 334. Compensation under general retainer. § 335. Actions for compensation. § 336. Liability of client. § 337. Implied obligation. § 338. Pleading and proof. § 339. Proving retainer — Evidence of employment. § 340. Evidence for plaintiff. § 341. Evidence for defendant. § 342. Attorneys' services — when considered as necessaries. § 343. Measure of compensation. § 344. Statute of Limitations. § 345. Compensation under special agreement. § 346. Express contract. § 347. Assignment of debt. § 348. Agreement for fixed sum in gross. § 349. Promissory note for services. § 350. Contingent or conditional fees.— Champerty. § 351. Contracts held champertous. § 3&2. Contracts held not champertous. § 353. Maintenance and barratry. § 354. Contingent fee not -within the Statute of Frauds. § 355. Right to contingent fee as against attaching creditor. § 356. Contract of indemnity. § 357. Merger of the contract. 532 LIABILITY OF CLIENT TO ATTORNEY. § 321 § 358. Death of client. § 359. Commissions for collecting. § 360. Fraudulent assignments. § 361. Measure of damages. § 362. Compensation of substitutes. § 363. Takingnewsecijrity for fees pending relation. § 364. Making new contracts for fees after retainer. § 365. Effect of withdrawal from case. § 366. Effect of dismissal of case, i' 367. Effect of change of attorney. II. — THE KEMEDV BY LIEN § 368. Lien of attorney. § 369. Two kinds of lien — general and particular. § 370. The particular or charging lien. §371. The general lien. , § 372. The so-called "retaining lien." § 373. Lien on papers. § 374. Summary jurisdiction over delivery of papers as affecting the lien. § 375. Waiver or loss of the lien. § 376. "When superseded. § 377. Collusive settlements. § 378. Eemedies on the lien. § 379. Equitable interference to protect the lien. § 380. Set-off as against lien. § 381. Appropriation of payments on account. § 382. Settlements between the parties as affecting the lien. § 383, Liens on partnership debts. § 384. Liens on sums awarded. § 321. The Roman Honorarium. — From the origin of the relation between attorney and client already touched upon in referring to the Roman patrons and their clients, it will be seen that it was the custom to regard the exertions of the advocate as purely honorary, given gratuitously, and the reward as of a similar nature, in discharge not of a legal obligation but as a debt of gratitude. This was perhaps lest the profession should degenerate into a mean and mercenary calling. But, neverthe- less, whatever the theory may have been, it is certain that some of the Roman advocates did charge and demand a pecuniary compensation for their services. This, however, being deemed an abuse, the Cincian law was passed A. U. C 549, by the tribune M. Cincius Alimentus, and was entitled De Donis ei Muneribus. The provision in regard to advocates has been re- corded by Tacitus in his " Annals " (xi, 5) : nequis oh causam orandam pecuniam donumve accipiat ; that no one shall receive a pecuniary compensation on account of pleading a cause. Be- sides, the advocates in the time of the Republic were generally § 321 LIABILITY OF CLIENT TO ATTORNEY. 533 men of high rank and family, and of wealth. The pecuniary reward was often no inducement. Their object was popularity, the obtaining the votes of the people to further their different political and ambitious designs. Free services in the courts of law accomplished this object. The result was a large following and clientage almost entirely under the control of the patron for political purposes. But upon the downfall of the republic all this has changed. The Emperor was the real source of ad- vancement. The profession began to be followed for Its emolu- ments, and the Cinclan law became a dead letter. Augustus revived it by prescribing additional penalties, but the temptation was too strong, and the law was again practically disregarded. In the reign of the Emperor Claudius a decree was promulgated limiting the amount of fees to 10,000 sesterces, equivalent In English money to about seventy-five guineas, and advocates were rendered liable to indictment for extortion If they received more. In Nero's time a decree of the senate was passed reviv- ing the Cinclan law, and forbidding counsel to take fees at all.^ Suetonius says, however, that the Claudian law, limiting the amount of fees, was adopted In the same relgn.^ In the reign of Trajan, owing to the corrupt practices of the Roman advo- cates in taking fees from both sides, and betraying either as might be most advantageous pecuniarily, a decree of the senate was passed by which parties to an action were obliged to take an oath, before the case came on for trial, that they had neither given nor guaranteed any sum of money to the advocates whom they employed. When the cause, however, was at an end, they were allowed to pay their counsel fees not exceeding the amount fixed by the Claudian law. But this decree seems to have become obsolete. In the time of Quintillan, counsel could not claim fees as a debt, even though they were within the pre- scribed limits. Quintillan thought that If the state of an advo- cate's affairs required that he should earn a livelihood, then he should not refuse to take pecuniary rewards for his exertions. "Nor," says Quintillan, "do I see what fairer or more proper mode of getting money can be suggested than by means of a most honorable profession, and from those to whom we have 1 Tacitus' Ann. xiii, 4, 5; Forsyth's Hortensius, chap. 9. 2 Sueton. Nero, c. 17. 534 LIABILITY OF CLIENT TO ATTORNEY. § 322 rendered the most important services, and who, if they give nothing in return, must have been unworthy of our exertions. And this is not only right, but necessary, since these very exer- tions, and the time devoted to the affairs of others, prevent coun- sel from increasing their fortune by other means." " A virtuous advocate, therefore, will not seek to get more than is sufficient for him ; and even one whose poverty obliges him to receive fees will not take them as a debt due to him, but receive them as an acknowledgment, being well aware that the obligation is still on his side. For in truth the services of counsel ought not to be sold, nor, on the other hand,, go unrewarded." § 322. In the Middle Ages. — It has been seen that in Rome a limitation was made upon the amount of fees that might be taken. This continued as long as the Roman Empire existed. '^ Within the prescribed maximum, however, the judge was to determine what was fairly and reasonably due, taking into con- sideration the nature of the cause, the eloquence of the advo- cate, and the custom of the court. Among the capitularies of Charlemagne there were regula- tions governing the conduct of attorneys ; and among these was one to the effect that if they were discovered to be influenced by undue eagerness for money in the causes they, undertook, they were to be banished from the society of honorable persons, and virtually disbarred ; ^ but there do not appear to be any rules laid down as to the amount of fees to be received. In France, by a royal ordinance, in the time of Philip the Bold, in 1274, the honorarium was to be regulated by a regard to the importance of the cause and the ability of the advocate ; but in no case was it to exceed thirty livres. If the advocate and client could not agree, the judge who tried the cause was to determine it with due regard to equity. In 1579, an ordinance was issued by Henry III, known by the name of Ordonnance de Blois, which enjoined advocates to put their names to all the papers which they drew up in a cause, and to subscribe the amount of fees they had received, in or- der that they might be taxed if deemed exorbitant. An attempt 1 Dig. 50, xiii, 1. "Cap. vil, tit. 114; Forsyth's Hortensius, 366, 367. § 323 LIABILITY OF CLIENT TO ATTORNEY. 535 to enforce this ordinance was met with violent manifestations of dislike and disobedience on the part of the Paris bar, and the ordinance subsequently fell into disuse and became a dead letter. § 323. In England. — The rule obtaining in England was stated by. Sir John Davy, in his preface to his reports, as fol- lows : " For the fees or rewards which they receive are not of the nature of wages or pay, or that which we call salary or hire, which are indeed duties certain, and grow due by contract for labor or service, but that which is given to a learned counsellor is called honorarium, and not merces ; being, indeed, a gift which giveth honor as well to the taker as to the giver, neither is it certain nor contracted for ; for no price or rate can be set upon counsel which is invaluable and inestimable, so as it is more or less according to circumstances, namely, the ability of the client, the worthiness of the counsellor, the weightiness of the cause, and the custom of the country. Briefly, it is a gift of such a nature, and given and taken upon such terms, as, albeit the able client may not neglect to give it, without note of ingratitude, (for it is but a gratuity or token of thankf ulneiss) yet the worthy counsellor may not demand it without doing wrong to his repu- tation, according unto that moral rule, Multa honeste accipi pos- sunt, qucB tamen honeste j^eti non possunt." This continued to be the rule in England. A barrister has no legal right to a fee. The church, however, expressly re- quires that those who practice in the ecclesiastical courts shall not lose their reward. The 131st canon provides that if any proctor " shall, by any color whatsoever, defraud the advocate of his duty or fee, or shall be negligent in repairing to the ad- vocate, and requiring his advice what course is to be taken in the cause, he shall be suspended from all practice for the space of six months, without hope of being thereunto re8t()kred before the said term be fully complete." The theory of the English law being that the profession of the advocate is merely honorary, it follows that the advocate's fee does not depend upon or grow out of any contract for labor or service, but is a gift honorarium, and that the advocate is inca- pable of making a contract for the compensation of his services as such ; ^ and at the same time the barrister is secure from all 1 Kennedy v. Brown, 13 C. B. N. S. 677. ^ 536 LIABILITY or CLIENT TO ATTORNEY. §§ 324-5 actions for want of skill, diligence, or discretion in the ionafide discharge of his duties. Having no power to enforce remuner- ation, the advocate is not subject to the ordinary liabilities of an attorney. What is said, therefore, under these heads, must be understood of the American lawyer, of whatever rank, and of the English attorney, solicitor, or proctor, and not of the English barrister, advocate, or counsel.^ § 324. Solicitors' fees under the English judicature acts. — In England, under the Supreme Court of Judicature acts of 1873 and 1875, by rules of court and orders in council, the fees of solicitors are provided for with great particularity. The regulations prescribe the exact fees that may be charged by the solicitor for writs, summonses, and warrants, services, notices and demands, appearances, instructions, draw^ing plead- ings, and other documents, copies, perusals, attendances, and special allowances, as for procuring evidence, attendances at chambers, procuring advice of counsel, inspection of documents, etc., etc. As to all fees or allowances which are discretionary, they may be allowed at the discretion of the taxing officer, who in the exercise of such discretion is to take into consideration the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount in- volved, the interest of the parties, the fund or persons to bear the costs, the general conduct and costs of the proceedings, and all other circumstances. The taxation may also on objection and application for review be reconsidered by the taxing officer, and on appeal by the judge.^ § 325. Remuneration of attorneys and solicitors in England— ^Agreements — Taxation of amount. — The prohi- bition against enforcing payments of fees applicable to the English barrister has never applied to the English attorney or solicitor. By the Attorneys' and Solicitors' Act of 1870, thirtv- third and thirty-fourth Vict., chap. 28, an attorney or solicitor 1 Swinfen v. Chelmsford, 1 Fost. & F. 619; 5 Hurl. & N.'SilO; Perririg v. Rebut- ter, 2 Moody & R. 429; Fell v. Brown, Peake, 96; Turner v. Phillips, Id. 122. 2 Orders in Council, August 12th, 1875, Order VI. § 325 LIABILITY or CLIENT TO ATTORNEY. 537 may make an agreement in writing with ills client respecting the amount and manner of payment for the whole or any part of any past or future services, fees, charges, or disbursements in respect of business done or to be done by such attorney or solicitor, whether as an attorney or solicitor or as an advocate or conveyancer, either by a gross sum, or by commission or per- centage, or by salary or otherwise, and either at the same or at a greater or at a less rate as or than the rate at which he would otherwise be entitled to be remunerated, subject to the provis- ions and conditions in this part of this act contained — provided, that when any such agreement shall be made in respect of busi- ness done or to be done in any action at law, or suit in equity, the amount payable under the agreement shall not be received by the attorney or solicitor until the agreement has been exam- ined and allowed by a taxing officer of a court having power to enforce the agreement ; and if it shall appear to such taxing officer that the agreement is not fair and reasonable, he may re- quire the opinion of a court or a judge to be taken thereon by motion or petition, and such court or judge shall have power either to reduce the amount payable under the agreement, or to order the agreement to be canceled, and the costs, fees, charges, and disbursements in respect of the business done to be taxed in the same manner as if no such agreement had been made. Scming interests of third parties — agreements to exclude fur- ther claims. — Such an agreement shall not affect the amount of, or any rights or remedies for the recovery of, any costs recov- erable from the client by any other person, or payable to the client by any other person, and any such other person may re- quire any costs payable or recoverable by him to or from the client to be taxed according to the rules for the time being in force for the taxation of such costs, unless such person has otherwise agreed ; provided that the client who has entered into such agreement shall not be entitled to recover from any other person under any order for the payment of any costs which are the subject of such agreement more than the amount payable by the client to his own attorney or solicitor under the same. Such an agreement shall be deemed to exclude any further claim of the attorney or solicitor beyond the terms of the agreement in respect of any services, fees, charges, or disbursements in rela- 538 LIABILITY OF CLIENT TO ATTORNEY. § 326 tion to the conduct and completion of the business in reference to which the agreement is made, except such services, fees, charges, or disbursements, if any, as are expressly excepted by the agreement. Heservation of responsibility for negligence. — A provision in any such agreement that the attorney or solicitor shall not be liable for negligence, or that he shall be relieved from any re- sponsibility to which he would otherwise be subject as such at- torney or solicitor, shall be wholly void. Examination and enforcement of agreements. — No action or suit shall be brought or instituted upon any such agreement ; but every question respecting the validity or effect of any such agreement may be examined and deterniined, and the agreement may be enforced or set aside, without suit or action, on motion or petition of any person, or the representative of any person, a party to such agreement, or being or alleged to be liable to pay, or being or claiming to be entitled to be paid, the costs, fees, charges, or disbursements, in respect of which the agreement is made by the court in which the business, or any part thereof, was done, or a judge thereof; or if the business was not done in any court, then, where the amount payable under the agreement exceeds fifty pounds, by any superior, court of law or equity, or a judge thereof ; and where such amount does not exceed fifty pounds, by the judge of a county court, which would have ju- risdiction in an action, upon the agreement.^ § 326. Bills of costs under the English system. — By 6 and 7 Vict. chap. 74, Sec. 37, no attorney or solicitor nor his executor, administrator, or assignee, shall commence or main- tain any action, or suit, for the recovery of any fees, charges, or disbursements, for any business done by such attorney or solic- itor until the expiration of one calendar month after the delivery to the party charged, or sending by the post to or leaving for him at his country-house, office of business, dwelling-house, -or last known place of abode, a bill of such fees, charges, and dis- bursements, which bill is to be either subscribed by the attorney, or by any partner of a firm, either with his own or the firm name, or by the executor, administrator, or assignee; or be in- 1 33 and 34 Vict. ohap. 28, sees. 4-8. § 326 LIABILITY OF CLIENT TO ATTORNEY. 539 closed in or accompanied by a letter subscribed in like manner referring to such bill.-^ An attorney's bill may be referred to taxation, though not signed by him, or inclosed in a letter signed by him and refer- ring to it. It is for the judge, to whom application ^ is made for an order to tax a bill of costs, to decide whether or not such bill contains taxable items.^ An agreement to charge costs only out of pocket does not preclude taxation ; nor does an agreement to receive a fixed sum fot costs for business thereafter to be done, notwithstanding payment under it; nor does an agreement with an ignorant client, for payment of his bills, taken at a given amount, solely out of the produce of scyne property, the subject of the suit.* A bill signed by one of twej, Attorneys in partnership thus : "Per self and Kobert Owen, Ja'-.ies H. Dixon," has been held a sufficient signature.^ A solicitor who delivers an unsigned bill is bound by it ; but his client may either treat it as a nullity, or waive the want of signature and adopt it, though after such waiver, the client cannot treat the bill as non-delivered.^ The 16 and 7 Vict. chap. 74, sec. 37; 20 and 21 Vict. chap. 77, sec. 96, as to prac- titioners in Probate Courts; 21 and 22 Vict. chap. 108, sec. 13, as to practitioners in divorce and matrimonial courts; Parker v. Gill, 10 Jur, 1096;, In re Strother, 3 Kay & J. 518; 3 Jur. N. S. 736; 26 L. J. Ch. 695. See Kernaghan v. Waderson, 3 Car. Law Eep. 764; Windsor v. Herbert, 7 Mees. & W. 375; 9 D. P. C. 237; 5 Jur. 730. In an action on an attorney's bill, by his executor, the court, before the 6 and 7 Vict. chap. 73, had no power to refer the bill for taxation, though it contained taxable items. (Williams v. Griiiith, 2 Dowl. N. S. 281; 10 Mees. & W. 125.) 2 Young u. Walker, 16 Mees. & W.446; In re Pender, 2 Ph. 69; 10 Jur. 891. See Billing v. Coppack, 1 Ex. 15; 5 Dowl..& L. 126; 16 Law J. Ex. 265. ' 8 In re Johnson, 1 Jur. N. S. 140. See as to what are and what are not taxable bills and taxable items in England: Smith v. Demies, 7 Dowl. & L. 78; 5 Ex. 32; 13 Jur. 518 ; 19 Law. J. Ex. 60. Contra : In re Simmons, 3 Dowl, & L. 156 ; 2 Dowl. & L. 500; 9 Jur. 227; 14 Law J. Q. B. 41; In re Andrews, 17 Jur. 1145; 17 Beav. 510; 23 Law J. Ch. 129; In re Osborne, 25 Beav. 353; 4 Jur. X. S. 296; 27 Law J. Ch. 532; Curling v. Sedger, 6 Scott, 678; Sylvester v. Webster, 9 Bing, 388; 2 Moore & S. 506; 1 D. P. C. 708; Clark v. Donovan, 5 T. E. 694; 1 Esp. 137; Rex V. Collingridge, 3 Price, 280;'Lethbridge v. Luxmore, 1 Dowl, & E, 511; 5 Barn. & Adol. 398; Painter v. Linsell, 8 Scott, 453; 8 D. P. C, 250; In re Maris, 2 Ad. &E. 582; Presiderti. Smith, 1 W. W. & H. 51; 2 Jur, 205; Winters. Payne, 6 T. E. 645; Ex parte Prickett, 1 N. E. 206; Nicholas v. Hayter, 2 Ad. & E. 348. * In re Ransom, 18 Beav. 220; In re Newman, 30 Beav. 196; In re Ingle, 21 Beav. 275; 1 Jur. N, S. 1059; 25 Law J. Ch. 169. ■ See In re Vann, 15 Com. B. 341 ; 3 Com. Law, Rep. 126. 6 Owen V. Scales, 2 Dowl. N. S, 304; 10 Mees. & W. 657; 6 Jur. 1000; 12 Law J. Ex. 26. 6 In re Gedye, 14 Beav. 56; 15 Jur. 851; 20 Law J, Ch. 410. S,ee Allen v. Murphy, 9 Ir. L. R. 305. 540 LIABILITY OF CLIENT TO ATTORNET. § 327 day on which a bill is received is not to be reckoned as one of the days of the month given to the client.-' § 327. Delivery of the bill. — As to the delivery of the bill, its sufficiency depends upon the circumstances of each particu- lar case.^ Handing the bill to a relation of the party is not sufficient ; ^ but delivery to the servants of the client at his dwelling-house, has been held to be so.* It is not enough to show it to the party charged and then to take it away again, unless the attorney showing it intends to leave it with the party and merely takes it back at his request.^ A delivery to an agent of the client appointed for that purpose is sufficient,^ and so is delivery of a bill unsigned, but accompanied by a letter signed by the solicitor and referring to the bill,'^ and a signed bill headed in the matter of business, but not addressed to any one, but enclosed in an envelope and sent by post to the client.* It is enough to deliver a bill to one of several joint contract- ors,' and to a solicitor of a corporation who lays it before the managing committee, the defendant being present, to charge the latter as an acting member.^'' A bill in such a case should be delivered, either at the office of the company, or at least to some person who can reasonably be considered to represent the committee.^^ An order for the delivery of an attorney's bill may be made by a judge of a different court from that in which the action is brought, although a judge of the latter court is attending in chambers at the time such order is made.^^ An at- 1 Blunt c. Haslop, 2 J). P. C. 982. 2 Gridley v. Austen, 16 Q. B. 504; 13 Jur. 680; 18 L. J. Q. B. 337. 3 Ibid. * McGregor v. Keil.y, 2 Dow]. & L. 6:!5; 3 Ex. 794; 18 Law J. Ex. .S91. 5 Phipps v. Danbury, 2 Lown. M. & P. 180; 16 Q. B. 514 : 20 Law J. Q, B. 273. 6 Jn re Bush, 8 Beav. 66. 'In re Bush, 8 Beav. 66; Taylor v. Hodgson, 3 D. &- LI. 115; 10 Jur. 355; 14 Law J. Q. B. 310. See Champ v. Stokes, 6 Hurl. & N. 683; 7 Jur. N. S. 607; 3 Law J. Ex. 242. 8 Roberts v. Lucas, 11 Ex. 41 ; 1 Jur. N. S. 527 ; 24 Law J. Ex. 227 ; 3 Com. Law Rep. 987. 8 Maiit V. Smith, 4 Hurl. & >J. 324; 28 Law J. Ex. 234. See Bland v. De Burgh, 6 Cora. B. 623; 6 Dowl. & L. 412; 5 Rail. C. 361; 12 Jur. 1005; 18 Law J. Com. P. 2. "Eggington v. Cumberleje, 1 Ex. 271; 5 Rail.C. 113; 11 Jur. 932; 16 Law J. Ex. 283. See Edwards v. Lawless, 5 Rail. C. 357; 6 Dowl. & L. 105; 6 Com. B. 329; 17 Law J. Com. P. 293; Spyer v. Bernard, 8 Law T. N. S. 396; Champney v. Peck, 1 Stark. 404. 11 Ibid. 12 Bennett v. Dean, 4 M. & G. 638. See Tanner ti. Lea, 4 M. & G. 617 ; 5 Scott N. R. 237. § 327 LIABILITY OF CLIENT TO ATTORNEY. 641 taehment will not be granted against an attorney for disobe- dience to a rule of court ordering him to deliver his bill within a time named, unless a demand is first made of him for his bill, by one of the persons to whom he is ordered to deliver iO An action does not lie against an attorney for disobedience of the order of a judge for delivery of his bill of costs. An attach- ment in such case is the proper remedy.^ On motion for an at- tachment for non-delivery of an attorney's bill to a party pursu- ant to rule of court, the affidavit should be made by the party himself ; that of a third person is insufficient.^ The mtention of the statute was said to be to give the client due time to examine the charges made by the attorney, and to take advice upon them. Showing a copy was held not sufficient; a copy must have been left before an action could be brought upon it.* The statute also required that the bill signed by the attorney should be delivered to the party personally, or left at his dwelling-house or last place of abode. Delivery at a count- ing-house was nort, therefore, sufficient.^ But leaving it at the defendant's last apparent place of abode was sufficient.^ Where an attorney is retained jointly by several parties to defend a suit against each, the delivery of a bill to one is sufficient to entitle him to maintain a joint action against all, for his costs, within the provisions of the statute.'^ A party having changed his attorney, an order was obtained by the second attorney for the delivery of a bill signed by the 1 In re Catlin, 6 Dowl. & L. 566; 7 Com. B. 136; In re Baster, 7 Dowl. & L. 296. 2 Dent V. Bosham, 9 Ex. 467; 2 C. L. E. 989; 18 Jur. 295; 23 L. J. Ex. 161. 8 Potter V. Back, 8 D. P. C. 872. To the point that an attorney may set-off a claim for costs notwithstanding no signed hill has been delivered, see Brown v, Tibbits, 11 Com. B. N. S. 855; 31 Law J. Com. P. 206; 10 Week. R. 465; 6 L. T. N. S. 385; Harrison v. Turner, 10 Q. B. 482; 11 Jur. 817; 16 Law J. Q. B. 295; Jef- freys V. Evans, 3 Dowl. & L. 52; 14 Mees. & W. 210; 14 Law J. Ex. 363. When an attorney has been retained for and undertaken a particular busi- ness, his bill of costs for carrying that business through to its conclusion is but one bill. (Stokes v. Trumper, 2 Kay & J. 232.) * Brooks V. Mason, 1 H. Bl. 290; Crowder v. Shee, 1 Camp. 437. See Champ- neys v. Peck, 1 Stark. 404. 5 Hill V. Humphreys, 2 Bos. & P. 343; 3 Esp. 254. 6 Wadeson v. Smith, 1 Stark. 324. ' Oxenham v. Lemon, 2 Dowl. & E. 461. Delivery to the attorney of the party to be charged is sufficient if the party himself attend the taxation, or the bill be shown to have come to his hands. (Warren v. Cunningham, 1 Gow. 71.) 642 LIABILITY OF CLIENT TO ATTORNEY. § 328 first attorney under the statute, which delivery was made to the second attorney in the cause. This was considered a sufficient delivery to the party to be charged, so as to enable the first at- torney to bring his action against the client for the amount of such bill.^ If a bill has been delivered to a deceased client it is not necessary, in order to maintain an action against his personal representative, to deliver another.^ A mistake in the date of items in an attorney's bill which does not mislead, does not vitiate the delivery of the bill.^ If part of an attorney's demand be for money advanced to his clients, and the remainder for busi- ness done, he cannot, under the English system, recover, unless a bill be delivered ; nor can he divide his demands at the trial and recover for the money advanced.* § 328. Requisites of the Bill. — A bill must show in what court the business was done, and the name of every suit in which the business charged for or the greater part of it was done,® and each item charged for transacted. It should be an entire thing, and if the same bill blends charges for work done in a court of equity with charges for work apparently done in a court of com- mon law, without designating which, the client cannot judge or be advised whether he should refer the whole bill for taxation ; and the charges in the same bills for equity business, though correctly stated, cannot be recovered. The bill must give suffi- cient materials for obtaining advice as to taxation. Where a bill contains items applicable to proceedings in the superior courts, but does riot contain any statement from which it can be inljerred in which of those courts the business was transacted, the bill is to be presumed to be a compliance with the statute, unless the party charged thereby proves that any further infor- mation was practically required for the purpose of taxation, or 1 Vincent v. Slaymaker, 12 East, 372. 2 Reynolds v. Caswell, 4 Taunt. 193. 3 Williams v. Barber, Ibid. 806. " Benton v. Garcia, 3 Esp. 149. 5 6 and 7 Vict. chap. 73; Englehart v. Hart, 15 Mees. \' W. 548; 4 Dowl. & L. CO; 15 Law J. Ex. 312; Ivinney w. Marks, 16 Mees. & W. 843; 4 Dowl. & L. 109; 11 Jur. 355; 17 Law J, Ex. 165; Martiudale v. Falkner, 2 Dowl. & L. 600; 2 Com. B. 706; 10 Jur. 161; 15 Law J. C. P. 91; Duries v. Wriglit, 8 Com. B. 831; 7 Dowl. & L. 292; 19 Law J. C. P. 137; Sargant r. Gannon, 7 Com, B. 742; 6 Dowl. & L. 691; 18 Law J. C. P. 220. § 329 LIABIEITY OF CLIENT TO ATTORNEY. 543 shows that the name of the court in which business was done would have been of use to him.^ A bill of costs appears to be sufficient if it gives such informa- tion as would enable the client to obtain advice as to the taxation of the bill ; and it is not necessary that an attorney, whom the client may consult as to the expediency of having the bill taxed, should be able to say, without further inquiry, whether the charges are fair and reasonable. Where a bill contains items for proceedings such as would take place in the superior courts, it is not necessary that it should show in which of those courts the business took place. The omission sufficiently to specify one or more items does not disentitle an attorney from recover- ing that portion of the bill which is unobjectionable.^ But the sixth and seventh Vict., chap. 73, sec. 37, in requiring that a signed bill of costs should be delivered previously to an action by an attorney, means a bill so drawn out that all the items are ■ charged in a taxable shape.^ ^ § 329. Propriety of charges. — Although the master has no jurisdiction to determine whether acts done by the attorney were useful, he may determine what were necessary.* Where, in a bill of costs, several charges of a discretionary nature were entered, some too low and some too high, the latter of which the master reduced to their proper amount, but refused to raise the former, the court refused to review the taxation.^ The master has no jurisdiction to disallow items on the ground that in re- spect of the business to which they refer the attorney was guilty of negligence.^ An attorney will not be allowed, on taxation of costs, to charge for more than one letter before action.'^ 1 Cooke V. Gillard, 1 El. & B. 26; 17 Jur. 137; 22 Law J. Q. B. 90; Keener. Ward, 7 Dowl. & L. 334; 13 Q. B. 515; 14 Jur. 65; 19 Law J. Q. B. 46. 2 Haight V. Ousey, 3 Jur. N, S. 634; 26 Law J. Q. B. 17 ; 7 El. & B. 578. But see Pigott V. Codman, 1 Hurl. & N. 837; 26 Law J. Ex. 134. s Philby V. Hazle, 8 Com. B. N. S. 647; 7 Jur. N". S. 125; 29 Law J. C. P. 370. See, as to what bills have been held sufficient, Keene v. Ward, 7 Dowl. & L. 34: 13 Q. B. 515; 14 Jur. 65; 19 Law J. Q. B. 46; Cosens v. Graham, 12 Com. B. 398; 16 Jur. 952; 21 Law J. Com. P. 206; Andersons. Boynton, 7 Dowl. & L. 25; 13 Q. B. 308; 14 Jur. 14; 19 Law J. Q. B. 42. ■1 Williams v. Nicholas, 1 Dowl. N. S. 841; Matchett v. Parker, 9 Mees. & W. 767; 1 Dowl. N. S. 924; Heald v. Hall, 2 Dowl. P. C. 163. 5 Eyre v. Shelley, 8 Mees. & W. 154; 5 Jur. 439. 6 Matchett v. Parker, supra. -. Capel V. Staines, 2 Mees. & W. 850; 5 D. P. C. 770; M. & H. 265; 1 Jur. 740. 544 LIABILITY or CLIENT TO ATTORNEY. § 329 When there are matters in a bill which have no relation to business as an attorney, as money advanced to the client, the master, upon reference to him, should strike those items out and proceed to tax the rest ; ^ but items of the costs taxed in two actions and paid by the attorney, and for which he had re- ceived no specific payment from his client, are properly inserted in the bill, and need not be in the cash account.^ When attor- neys bring an action to recover the amount of their signed bill of costs, which bill contains some items which they are not en- titled to recover, the action may be maintained for the residue.* The items may be amended or altered on petition, omitted items may be supplied, and those undercharged increased ; but an alteration of a bill referred for taxation cannot be made after it is brought in for taxation, except by consent.* In England, after an attorney's bill has been delivered a month, and no application has been made to have it taxed, the client will not be permitted to question the reasonableness of the items before a jury.^ At a trial, the allowance of items in a bill by the master on the taxation is 'prima facie evidence that those items so allowed had been performed by the attorney.^ In an action on an attorney's bill, when there is evidence of a general retainer, the judge will not allow the bill to be taxed in detail by the jury : although particular heads or items of charge, not necessarily arising out of the retainer, may be disal- lowed in toto, as not having been authorized by the client.' 1 Wardle v. Nicholson, 1 N. & Mev. 335; i Barn. & Adol. 469. 2 Harrison «. Ward, 4 D. P. C. 39; 1 Har. & W. 353, See Oppenshaw v. White- head, 9 Ex. 384; 2 Car. Law Rep. 553; 23 Law J. Ex. 97. See, as to what items have been allowed, Maddison v. Bacon, 5 Bing. (N. C.) 246; 7 Scott, 207; 3 Jur. 248; Broadhurst v. Darlington, 2 D. P. C. 38; Ex parte Quick, 2 Scott, 184; 1 Hodges, 202; In re Tilleard, 23 Law J. Ch. 765; 11 Week. E. 764; 8 L. T. N. S. 587. As to what items have been disallowed, Jones v. 5,oberts, 2 D. P. C. 374; 4 Tyr. 310; Leaver v. Whalley, 2 D. P. C. 80; Buckuall v. Boybell, 7 Scott, 171. 3 Pilgrim v. Hirchtelt, 9 L. T. N. S. 288; 11 Week. R. 51. 4 In re Whatley, 20 Beav. 576; Davis ti. Dysart, 21 Beav. 124; 1 Jur. N. S. 1153; 25 Law J. Ch. 122-322; In re Catlin, 18 Beav. 519. 6 Williams v. Frith, 1 Doug. 189; Hooper >•. Till, 1 Doug. 198; Anderson v. May, 2 Bos. & P. 237; 3 Esp. 167. 6 Whalley v. Glover, 3 Car. & K. 13. ' Dunn ». Hales; 1 Fost. & F. 144. See as to interest on costs in England, 23 and 24 Vict. chap. 127, sec. 27; Berrington ti. Phillips, 4 D. P. C. 578; 1 Gale, 404; 1 Mees, & W. 48; May v. Biggenden, 24 Beav. 207; Lyddon «. Moss, 4 De Gex & J. 104; 5 Jur. N. S. 637; Carter v. Carter, 8 L. T. N. S. 692. §§ 330-1 LIABILITY OF CLIENT TO ATTORNEY. 545 § 330. Liability to be taxed. — It has been held in Eng- land that if an attorney introduce into his bill certain items connected with his professional capacity, though not immedi- ately within the terms of the statute, and in action upon the bill fail because it was not properly delivered, according to the di- rections of the statute, he must fail together, and he will not be allowed to recover for such items only.^ Many charges, however, which are not taxable in themselves, become taxable when included in a bill containing taxable items. It is also settled, at least in England, that where a bill contains one item, which is a proceeding in court, all the residue of a bill, though it be a bill merely for conveyances, is taxable.^ So, in chancery, if any part of a solicitor's bill relates to business done in chancery, the whole is subject to taxation.^ Costs and disbursements paid by an attorney out of his own pocket are taxable.* § 331. Referring bill to taxation. — The court has no power to refer a bill of costs for taxation, when such bill has been paid more than twelve calendar months before the applica- tion has been made to the court to refer. The application to tax must be made within twelve calendar months after pay- ment ; but under special circumstances the court has ordered 1 Winter v. Payne, 6 Durn. & East, 645; Hill v. Humphreys, 2 Bos. & P. 343; Thwaites v. Mackerson, 1 Mood. & M. 199; 3 Car. & P. 341. 2 2 Taunt. 322. 3 Margerum v. Sandiford, 3 Br. C. C. 233. * Peake 102; 1 Camp. 437. As to what have been held taxable items in an at- torney's bill, under the English practice, see Lethbridge v. Luxmore, 1 Dowl. & R, 511; S. C. 5 Barn. & C. 898; Watt v. Collins, 1 Ryan & M. 284; 2 Car. & P. 71; Winter v. Payne', 6 Durn. &E. 645; Rex v. Oollingridge, 3 Price, 280; Rex v. Partridge, 1 Tidd's Pr. 330; Collins v. Nicholson, 2 Taunt. 321; Ford v. Webb, 2 Brod. & B. 241 ; Ex parte Prlckett, 1 New Rep. 266 ; Wilson v. Gotteridge, 4 Dowl. & R. 737; 3 Barn. & C. 157; Weld v. Crawford, 2 Stark. 538; Ex parte Williams, 4 Durn. & E. 496; Clark v. Donovan. 4 Ibid. 594; Smith w. Wattle- worth, 4 Barn. & C. 364; 6 Dowl. & R. 510; Tidd's Pr. 330; 1 Car. & P. 615; Fearne V. Wilson, 6 Barn. & 0. 86; 9 Dowl. & R. 157; Hazard v. Lane, 3 Mer. 285. Whatnot taxable items, Hillier v. James, 1 Barnes, 37; Green ». Hassel, Say. Rep. 233; Fenton v. Correa, 3 Oar. & P. 45; 1 Ryan & M. 262; Williams v. Odell, 4 Price, 279; Burton v. Chatterton, 3 Barn. & Aid. 486; 2 Stark. 522; Prothero v. Thomas, 1 Marsh, 539; 6 Taunt. 196; Ex parte Dann, 9 Ves. 547; Ex parte Wheeler, 3 Ves. & B. 21; Ex parte Fearow, 5 Yes. 633; Ex parte Partridge, 2 Mer. 500. A. & C— 35. 546 LIABILITY OF CLIENT TO ATTORNEY. § 331 bills to be taxed twelve months after they have been delivered. By the word " payment" is meant a payment in money ; not by bill of exchange or promissory note.^ To obtain an order for taxation of a bill of costs which has been paid, it must be shown that there has been undue pressure and overcharge, or over- charge amounting to fraud.^ The mere fact that an action is pending upon an attorney's bill does not give a judge or the court jurisdiction to refer the bill for taxation after the lapse of a year, without special cir- cumstances. The special circumstances under which a judge may by 6 and 7 Vict. chap. 73, sec. 37 refer an attorney's bill for taxation after verdict, must in general be circumstances newly come to the knowledge of the party, and upon learning which he must apply promptly to the court.^ When a party does not apply for the taxation of a bill of costs within a month after the bill is delivered, but waits till an action is brought against him, and then makes terms and obtains time from his attorney, these are such special circumstances as will induce the court not to refer a bill for taxation.* Where a bill is paid in order to obtain possession of deeds, and an intention is at the same time expressed to have the bill taxed, an order will be made to refer it to taxation.^ As in case of payment, it is also held that to entitle a client to an order of taxation, after the expiration of twelve months from its delivery, he must show either pressure or gross over- charge, amounting to what a court of equity designates as fraud. 1 In re Harris, 1 Dowl. & L. 1018; 13 Mees. & W. 3; 8 Jur. 453; 13 Law J. Ex. 259; Bemis v. Hey, 1 Dowl. & L. 661; 7 Jur. 1154; 13 Law J. Q. B. 28; Boss v. Wilton, 7 Jur. 1133; 13 Law J. Q. B. 17. See In re Dearden, 9 Ex. 210; 17 Jur. 993; 23Law J. Ex. 14. 2 in re Foster, Ex parte Walker, 6 Jur. N. S. 687 ; 29 Law J. Oh. 625. See Ex parte Tosland, In re Letts, 31 Beav. 488; 8 Jur. N. S. 1119; 32 Law J. Ch. 100; 11 Week. E. 15 ; 7 L. T. N. S. 307. See In re Harrison, 10 Beav. 57; 11 Jur. 197. Contra, In re Deardon, 17 Jur. 993. Where a bill has been delivered and security given for the amount, that is equivalent to payment for the purpose of precluding taxation without special circumstances. (Ex parte Turner, 5 De Gex ; Macn. & G, 540; 24 Law J. Ch. n.) 3 In re Whicher, 13 Mees. & \V. 549; 2 Dowl. & L. 407; 14 Law J. Ex. 78; Cow- dell V. Neate, 1 Com, B. N. S. 332; 2 Jur. N. S. 1248; 26 Law J. Com. P. 37. i In re Wilton, 13 Law J. Q. B. 17; Ross v. Wilton, 7 Jur. 1133. ^ In re Deardon, 17 Jur. 993; 9 Ex. 210; 23 Law J. Ex. 210. § 331 LIABILITT OF CLIENT TO ATTORNEY. 547 But it is not necessary to show both ; and where an application by a residuary legatee to tax a bill of costs of the solicitors of the executors, after payment, no case of pressure or actual fraud being made out, nor of very gross overcharge, but various items were of a considerably greater amount than would have been allowed to the executors in a suit to administer the estate, it was held that taxation had been rightly ordered, on the ground that overcharges of this nature were overcharges amounting to fraud within the technical meaning of the term.^ The rule in courts of law, that before an attorney's bill is settled and paid it may be taxed as of course, but not as of course after payment has been acquiesced in, also prevails in equity .2 The general rule is that an attorney's bill which has been delivered for the purpose of creating a capacity of bring- ing an action cannot be taxed at the trial or after verdict, but, under special circumstances, the court will refer it for taxation. If it be shown by affidavit that the business has not been done, or that the charges are fraudulent, neither payment of the money, nor a release, nor a judgment for the demand, nor a warrant of attorney to confess judgment, will preclude taxation in such cases. Neither will length of time, nor a settlement, nor security given for the bills, if the client can point out gross errors and charges amounting to imposition and fraud. There are cases where the court has ordered the taxation of an attor- ney's bill after eight,^ seventeen,* and twenty-one years, and an actual security given, and even after security and payment.® 1 In re Dickson, 3 Jur. JST. S. 29; 26 Law J. Ch. 89. See as to English practice in proceedings to tax an attorney's MU, Eeg. Gen. Q. B. C. P. and Ex. H. T. 16 Vict. B. 66; 1 El. & B. App. 13; Bassett v. Glblett, 2 D. P. C, 650; In re Payne, 5 Com. B. 407; Neale «. Postlethwaite, 8 D. P. C. 100; Goodland v. Frankland, 2 D. 1 N. S. 975; 7 Jur. 671; 12 Law J. Q. B. 249; Evans v. Taylor, 2 D. P. C. 349; In re Wilton, 13 J. Q. B. 17; 7 Jur. 1133; Jones v. Roberts, 2 D. P. 0. 656; 4 Tyrw. 310; Barradaile v. Nelson, 2 C. L. E. 740; 14 Com. B. 655; 18 Jur. 431; 23 L. T. C. P. 159; Ex parte Cooper; 14 Com. B. 663; GiUow v. Eyder, 15 Com. B. 729; 3 C. L. E. 263; Tucker v. Neck, 4 Bing. {N. C.) 113; 6 D. P. C. 239; 3Hodges, 242. 2 Langstraff ». Taylor, 14 Ves. 262. 3 Aubrey v. Popkins, Dick. 403. * Drapers' Co. v. Davis, 2 Atk. 296. 5 Cook V. Settree, 1 Ves. & B. 127 ; Langstraff v. Taylor, 14 Ves. 262. Where the charges were prima facie exorbitant, a bill of costs was ordered to be taxed, after payment made, and after the death of the assignee who had paid 548 LIABILITY OP CLIENT TO ATTORNEY. §§ 332-3 The rule, it is held, should not be carried too far, so as to prevent attorneys from undertaking and carrying on long and expensive suits. Every case is to be considered in the light of its ovs^n circumstances, and where nothing appears but a trifling inaccuracy, the court will not set aside a security, though given by the client while the business was depending.^ So the taxa- tion of a solicitor's bill was refused after a security given and after payment and acquiescence, where some of the charges, though improper, were not so gross as to amount to fraud.^ § 332. Taxation independent of statutory provisions. — The courts have jurisdiction to refer an attorney's bill for taxation, independent of any statute, and although no cause is pending. But it is not always that the court will exercise such jurisdiction, and probably it is not of course, but the application must be made to the court, and the circumstances under which its interference is claimed must be stated.^ § 333. In the United States. — In Pennsylvania, the En- glish rule, that counsel could not sue for compensation, was once in vogue, but afterwards rejected as a rule of law.* In New Jersey the rule has obtained,^ and also to some extent in the federal courts, as applied to counsel in the special sense of that term.^ But in Delaware, Florida, Kentucky, Massachu- setts, New York, Pennsylvania, Ohio, South Carolina, Texas, Vermont, Tennessee, Missouri, and other States, it has been expressly decided that counsel as well as attorneys have an un- doubted right to recover their fees by action." it. (Ex parte Neal, 1 Buck. Ill ; Balme v. Paver, 1 Jac. 305; 1 Madd. Ch. 116; Walmesley v. Booth, 2 Atk. 30; Penderpleath v. Frazer, 3 Ves. & B. 176; Lewis V. Morgan, 3 Austr. 769; Crossley v. Parker, 1 Jao. & W. 460.) 1 Cook V. Settree, 1 Ves. & B. 126; 1 Madd. Ch. 117. 2 Penderpleath v. Frazer, 3 Ves. & B. 174; Grillin v. Leyburne, 1 Term Eep. 407. 8 Williams v. OdeU, 4 Price, 279; Anon. 2 Chit. 155; Lee, Ex parte Smith, 5 Ves. 706; Bignold v. Bignold, 11 Ves. 328. ■* Lynch v. Commonwealth, 16 Serg. & E. 368; Gray v. Brackeuridge, 2 Pa. 75; Poster V. Jack, 4 "Watts, 334; Balsbaugh v. Frazer, 19 Pa. 95: Mooney v. Lloyd, 5 Serg. & E. 412, (A. D. 1819) overruling Brackeuridge v. McFarland, Addis. 49 (A.D. 1793). 5 Seeley v. Crane, 3 Green, 35; Van Alta v. McKiuney's Exrs. 1 Harris, 235. 6 Law )'. Ewell. 2 Cranch C. C. 144. ' Baird v. RatclifE, 10 Tex, 81; Carter o. Bennett, 6 Pla. 214; Webb e. Brown- § 333 LIABILITY OF CLIENT TO ATTOENET. 549 In Pennsylvania, it was also held that an attorney could not recover for his fees, without an express promise, anything be- yond the sum provided in the fee-bill.^ Other cases took the ground that the honorary character of the fees of barristers se- cured a shadowy distinction, but yet was beneficial in effect ; that it contributed to preserve the idea of profession of a class which belonged to the public, in the employment and remuner- ation of which no law interferes.^ But the rule was departed from as a question of law even in Pennsylvania, and the early decision overruled ; and the current of decisions in other States is also to the effect that an attorney or counsellor may recover for the full amount of his fees.^ So in the absence of express contract, the attorney or counselor in America and the attorney or solicitor in England is' entitled to recover from those who employ him in his profession what- ever his services are reasonably worth ; and the performance of such services at the instance or with the consent of the person about whose business they are rendered, implied an assumption to pay for them quantum meruit. The question was fully and ably discussed in Adams v. Stevens, 26 Wend. 452, by Chan- cellor Walworth as follows : ing, 14 Mo. 354; Poster?;. Jack, 4 Watts, 334; Gray v. Brackenridge, 2 Pa. 75; Stevens v. Mouges, 1 Harris, 127; Duncan v. Breithaupt, 1 McCord, 149; Clendi- nen v. Black, 2 Bail. 488; Christy «. Douglas, Wright, 485; Rust v. Larue, 4 Litt. 411; Stevens v. Adams, 23 Wend. 57; 26 Ibid. 451; Wilson v. Burr, 25 Ibid. 38fi; Wallist). Loubat, 2 Denio, fi07; Merrettu. Lambert, 10 Paige, 352; Lynch v. Wil- lard, 6 Johns. Ch. 342 ; Brigham v. Foster. 7 Allen, 419 ; Ames v. Gilman, 10 Met. 239; Thurston v. Percival, 1 Pick. 415; Bucklandt). Conway, 16 Mass. 34fi; Briggs V. Georgia, 10 Vt. 68; Vilas v. Downer, 21 Vt. 419; Balsbaugh v. Frazer, 19 Pa. 95: Caldwell v. Shepherd, 6 Mon. 389; Newman v. AVashington, Mart. & Y. 79. 1 Mooney v. Lloyd, 5 Serg. & E. 416. 2 Seeley v. Crane, 3 Green (N. J.) 35; Shaver v. Norris, Pen. (N. J.) 63; Van Alter V. McKinney's Exrs. 1 Har. 236. s Gray v. Brackenridge, 2 Pa. St. 181 ; Foster v. Jacks, 4 Watts, 33, 337 ; Stevens V. Adams, 23 Wend. 57; S. C. 26 Ibid. 451; Newman v. Washington, Mart. & Y. 79; Stevens »), Monges, 1 Harr. 127: Bayard v. McLane, 3 Ibid. 217; Duncan v. Besithaupt, 1 McCord, 149; Downing v. Major, 2 Dana, 228; Christy v. Douglas, Wright's Ch. E. 485; Webb v. Hepp, 14 Mo. 354; Vilas v. Downer, 21 Vt. 419; Lecatt V. Salles, 3 Porter, 115; Easton v. Smith, 1 E. D. Smith, -318; Webb v. Browning, 14 Mo. 353. The bar of Paris may recover their fees by suit, yet they regard it as dis- honorable, and those attempting it are often stricken from the rolls. We be- lieve a somewhat similar feeling exists in Philadelphia, if not throughout Penn- sylvania. (1 Dupin Profession d'Avocat, 110, 699.) 560 LIABILITY OF CLIENT TO ATTORNEY. § 333 " Bkckstone lays it down as the established law of England that a counsellor cannot sustain a suit for his fees, and he cites for this purpose the case of Moor v. Rowe, 1 Rep. in Ch. 38, in the time of Lord Coventry, 1639, where a demurrer was allowed to a bill, brought by a counsellor against a solicitor, for counsel fees, which the latter had agreed to account for periodically. He also refers to the decree of the emperor Claudius, mentioned by Tacitus, limiting the amount of gratuity which the advocate should be permitted to receive. * * * I am not aware of any case in which it has been definitely decided, even in England, that a barrister cannot recover upon an express contract to pay him a specific sum for his services as counsel ; but in the case of Turner v. Phillips, 1 Peake's N. P. C. 123, in which Lord Kenyon expressed the opinion that money paid to a barrister for his services could not be recovered back, he mentioned it as the general opinion of the profession that the fees of barristers and physicians were as a present from the client or the patient, and not a payment or compensation of services. It was on this prin- ciple, I presume, that he decided the case of Fell v. Brown, Id. 96, where he held that an action would not lie against a barris- ter for gross negligence in conducting the cause of his client. " The rule for considering the services of barristers as gratuit- ous merely, and not entitling them to any legal claim to com- pensation, is supposed to have been derived from the civil law. But as I understand that law, the advocate might recover upon an express promise to pay his honorary fee, although there was no implied promise arising merely from the relation of advocate and client. Among the early institutions of Rome, when the relation of patron and client existed between the patrician and the plebeian, the patron, who had accepted the promise of fidel- ity from his client, was bound to render him advice and assist- ance, and to sustain him in his litigations, without any other fee or reward than that which the client was bound to render him at all times in virtue of his general relation of client. The rela- tion which existed between them was similar to that of parent and child, or rather that of master and slave. But in the pro- gress of society, when the relations of patron and client towards each other had totally changed, when the business of advocatino- causes in the courts had become a profession, and before the § 333 LIABILITY OF CLIENT TO ATTORNEY. 551 credit system pervaded all the relations of life, the client paid his advocate a fee in advance for his services, which was called a gratuity or present. "As this was a mere honorary recompense, the client was under no legal obligation to pay it. But the result necessarily was, that if the usual present was not given, the advocate did not consider himself bound in honor to undertake the advocacy of the cause before the courts. Afterward, Marcus Cincius Ali- mentus, a tribune of the people, procured the passage of the law known as the Cincian law, prohibiting the patron or advocate from receiving any money or other present, for any cause ; and annulling all gratuities or presents made by the client to the patron or advocate. But as no penalty was prescribed for the breach of this law, it of course became a dead letter. The em- peror Augustus afterward re-enacted the Cincian law, and pre- scribed penalties for its breach. But towards the end of his reigrn the advocates were again authorized to receive fees or presents from their clients. The emperor Tiberius also permit- ted them to receive such forced gratuities. This led to the abuse referred to by Tacitus, and induced the senate to insist upon the enforcement, or rather the re-enactment, of the Cincian law, or rather the law limiting the amount of the fees of advo- cates, as referred to by Blackstone (lib. 3, p. 29, n. 12). JSTero revoked the law of Claudius, which was subsequently re-enacted by the emperor Trajan, with the additional restriction that the advocate should not be permitted to receive his fee until the cause was decided. (1 Buinn, aine, 39.) The younger Pliny mentions a law not referred to by Dupin, which authorized the advocate, after the pleadings in the cause had been made, and the judgment had been given, to receive the fee which might be voluntarily offered by the client, either in money or a prom- ise to pay. (See Merlin, art. Honoraires.') Erskine, in his 'Institutes of the Law of Scotland,' understands the law in the Digest, De extraordinariis cognitionibus, as authorizing a suit for the fee of an advocate, without a previous agreement for a specific sum. (2 Ersk. Inst, [by McAllen] 695.) " Whatever may have been the case in Rome itself, it is set- tled by the law of Scotland, where the civil law prevails, that an action may be sustained on a promise to compensate an advo- 552 LIABILITY OF CLIENT TO ATTORNEY. § 334 cate for his services. (See Stair's Inst, by Brodie, b. 1, tit. 12, art. 5, and note 6 ; 2 Bell's Law. Diet. tit. Fees ; Ersk. Inst. b. 3, tit. 3, art. 32; McKenzie v. Burntisland, Mor. Diet, of Decis. 11,421.) ****** " It appears also to be the law of France that the advocate may recover his fees by suit. (Sirey, Recuel Generale de Lois, torn. 22, pt. 2, p. 141.) But it seems to be considered dishonor- • able by the Parisian bar to bring suits for counsel fees ; and those who should attempt to do it would be immediately stricken from the roll of advocates. (1 Dupin, aines, Prof. d'Avocat, 110, 698.) " "Whatever may be the practice of other countries, however, the principle has nevfer been adopted in this State that the pro- fession of counsellors is merely honorary, and that they are not of right entitled to demand and receive a fair compensation for their services, especially where there is an agreement to pay them a fixed compensation, or such a reasonable remuneration for their services as those services shall be deemed worth. The distinctions of patron and client, which formed one of the funda- mental laws of ancient Rome, ceased in this State when slavery was abolished ; and it is wholly inconsistent with all our ideas of equality to suppose that the business or profession by which one earns the daily bread of himself or his family is so much more honorable than the business of other members of the com- munity as to prevent him from recovering a fair compensation for his services on that account. I have no doubt, therefore, that by the law of this State, as it has always existed from the time of its first settlement, the lawyer was entitled to recover a compensation for his services, and that such services were never considered here as gratuitous and honorary merely." ^ § 334. Compensation under general retainer. — The at- torney is generally entitled to compensation for all services rendered in good faith and in a proper manner.^ In the absence of express contract, they are entitled to what the services are reasonably worth. When more than one attorney is employed, the presumption is that they share the fee equally, in the ab- 1 Adams v. Stevens, 26 Wend. 452-5. 2 Hallett v. Oakes, 1 Cush. 296. § 334 LIABILITY OF CLIENT TO ATTORNEY. 553 sence of proof to the contrary.i If there is any statute fixing a rate of compensation, the law implies a promise on the part of a client to pay his attorney at least the statute rate of com- pensation. The burden of proving that the attorney underr took to perform the services for a less rate, or without charge, rests upon the client ; and such an agreement should be made out by evidence equal to a positive declaration.^ As clients are bound to make fair and reasonable compensation to their coun- sel, it is fraud upon the latter for a client to settle a suit without his knowledge, to withhold fees, and then set up the Statute of Limitations.^ When a demand is given an attorney for collec- tion, there is no agreement implied on his part that he will, in the first instance, look to the demand as a means of satisfying his claim, or that he will wait for his pay until it be determined whether it is collectable or not.* Besides being entitled to a retaining fee, generally, for his ser- vices in a particular suit, an attorney has also a right to claim a proper compensation on being retained or required not to act or advise professionally adversely to the person so retaining him ; or he may be retained to act generally in all cases and matters in which the other is interested.^ If an attorney be employed at a stipulated fee, or be dismissed without fault of his own, before judgment, he is at least entitled to payment for the services already rendered, if not to the stip- ulated fee.^ If an attorney neglects to furnish his client with a statement of his extra expenses in the suit beyond the amount recovered of the adverse party, the amount recovered will be presumed to be all he has any right to claim. ^ A demand by an attorney upon his client for a certain sum as compensation, is only a proposition to receive that amount for the debt ; and if pay- ment is refused, the recovery cannot be limited to the amount demanded, if the services are shown to be of greater value.^ An 1 Hurst V. Durnell, 1 Wash. 438. 2 Brady v. Mayor, 1 Sand. 569. 3 Llcht.y V. Hugus, 55 Pa. 435. 4 Nichols V. Scott, 12 Vt. 47. 5 9 Casey, 442; Lecatt v. Sallee, 3 Port. 115; Webb v. Browning, 14 Mo. 354. 6 Myers v. Crockett, 14 Tex. 257. . ' Matter of Blakeley, 5 Paige, 311. 8 Miller v. Beal, 26 Ind. 234. But see Succession of Flower, 3 La. An. 292; In- gersoll V. Morse, 33 Miss. 667. 554 LIABILITY OF CLIENT TO ATTORNEY. § 334 account rendered by an attorney to his client containing his charges for professional services, if retained without objection becomes an account stated, and draws interest from the time when it was rendered. But interest is not allowed on an un- liquidated running account for which no time of payment is fixed.i On an issue between attorney and client as to the value of the former's services in a suit in which the latter was plaintiff, and which was settled without a trial, the opinion of the counsel of the defendant in such suit that the plaintiff therein had no case is competent evidence. If by their clients' authority at- torneys have retained counsel, and promised to pay him out of the proceeds of the suit, and he holds them responsible under this agreement, and the proceeds of the suit have come to their hands, it is too late for the client to forbid them to pay the coun- sel. An attorney retained in a suit is entitled to a reasonable retainer without any special contract therefor.^ Where an attorney engages to institute and prosecute a suit for a stipulated percentage out of the money or property real- ized thereby, if his client assigns the claim which was the foundation of the suit to a creditor who takes the claim with express reference to the rights of the attorney, and with the understanding that he shall pay the fees of the attorney before applying any of the proceeds to his own debt, a trust is thereby created, and a duty imposed upon the assignee to satisfy the prior claim of the attorney ; and in such a case the jurisdic- tion of a court of equity is complete.^ And where there is a special contract between an attorney and his client for a stipulated fee, and the attorney, after render- ing a part of the services contracted for, is prevented by any cause, not within his control, from rendering the rest, he may recover for the part performance on a quantum meruit. Where attorneys, who are employed under a special contract to prose- cute a suit, abandon the cause before its termination, they are thereby deprived of any claim under the contract, and are left to recover such fees and compensation as they are reasonably 1 Case V. Hotchkiss, 1 Abb. N. Y. App. 324; Hadley /■. Ayres, 12 Abb. Pr. X. S. 240, See Mygatt n. Wilcox, 45 N. Y. .301;. ■^ AlcTricb ?;. Brown, 103 ^lass. .")27. 3 Morgan v. Roberts, 3S 111. (i.'i. § 334 LIABILITY OF CLIENT TO ATTORNEY. 555 entitled to, on the basis of a quantum meruit?- And on the same principle, where an attorney at law engages to defend a cause for a specific sum and dies before the cause is determined, his administrator may recover from the client the amount which the intestate's services were really worth to him. The recovery cannot, however, exceed the contract price, or the rate of it for the part of the service performed.^ This principle was affirmed in Major v. McLester, 4 Ind. 591, where it was held that an attorney was entitled to recover on a qxhantutn meruit an amount equal to the benefit received by the defendant from his services, not exceeding the amount agreed upon for an entire performance of the contract. The same principle was upheld in Clendinen v. Black, 2 Bail. S. C. 488, where a note was given for a solicitor's fee, and he dying soon after, it was held that his representatives might recover what- ever his services were reasonably worth up to the time of his decease. An attorney who contracts to attend to certain suits, or accepts a general retainer for a fixed, stipulated sum, and who dies before the business to which he is attending has been been disposed of, is entitled (by his representatives) to a com- pensation such as his services were reasonably worth, which may be recovered on a quantum meruit? A employed two attorneys to collect a decree in A's favor of $500, and agreed in writing to pay them for their services |150 of the decree, when they should collect the same. The attor- neys having received $200, refused to pay it to A upon demand, whereupon A discharged the attorneys, employed another attor- ney to collect the decree, and brought ah action for money had and received against the former attorneys for the '^200 collected. They pleaded the general issue. The court held, that if the contract was in force, that the attorneys were not entitled to compensation until the decree was fully collected. Also, that if the contract was broken and rescinded, the claim of the at- torneys could only be for reasonable compensation for services rendered, with damages, perhaps, for the breach of contract. Further, that such compensation and damages could not be de- 1 Morgan v. Roberts, 38 111. 65. - Coe v. Smith, 4 Ind. 79. 3 Baylor v. Morrison, 2 Bibb, 103. 656 LIABILITY OF CLIENT TO ATTORNEY. § 335 ducted in this suit, as no special plea, notice, or counter claim was filed, but the general issue simply pleaded.^ § 335. Compensation — Actions for. — An attorney may obtain by suit compensation for services gendered. The princi- ple of the English law that counsel or barristers cannot recover by suit compensation for their services has no application in the United States.^ And it makes no difference as to the right whether the services were successful or not. To make out the defense that the attorney undertook to perform the services for little or no compensation, requires proof of an express contract so to do.^ And it has been held a fraud for the client to settle a suit without the counsel's knowledge, to withhold fees, and then set up the Statute of Limitations.* The attorney may of course recover from his client his reasonable expenses in and about the litigation.^ If ill success, however, is attributable to the lawyer's negli- gence or bad faith, then he cannot recover.^ But negligence or ill faith in one matter will not, it is held, deprive him of com- pensation in another. Perhaps it might, however, if damages were pleaded as a set-off.^ The attorney cannot recover when the service rendered was the maintenance of a procedure either iPruit V. Miller, 3 Ind. 16; Scobey v. Eoss, 5 Ind. 445. 2 Wharton on Agency, sec. 615; Law v. Ewell, 2 Crancli C. C. 144; Wylie «. Ooxe, 15 How. 416; Smith v. Davis, 45 N. H. 566; Nichols v. Scott, 12 Yt. 47; Clendinen v. Black, 2 Bail. 488; Miller v. Beal, 26 Ind. 234; Webh v. Browning, 14 Mo. 353; Sanford v. Ruckman, 24 How. Pr. 521; Stevens v. Monges, 1 Har. (Del.) 127; Van Atta v. McKinney, 16 N. J. L. 235; Foster v. Jack, 4 Watts. 339; Harlandj). Lilienthal, 53 N. Y. 438; Rush v. CaVanaugh, 2 Pa. 187; Brackett v. Sears, 15 Mich. 244. 3 Brady v. Major, 1 Sand. 559. * Lichty 11. Hugus, 1 Pa. 434. 6 Hayward v. Fiott, 8 Car. & P. 59; Grissell v. Robinson, 3 Barn. & C. 10; 3 Scott, 329; 2 Hodges, 138; Helps v. Clayton, 17 Com. B. N. S. 553; Baker v. Mei- ry weather, 2 Car. & K. 737; Campion v. King, 6 Jur. 35. 6 Wharton on Agency, sec. 615; Learson v. Darrlngton, 32 Ala. 227; Maynard V. Briggs, 26 Vt. 94; Nixon ». PhelpS, 29 Vt. 198; Bradin v. Kingland, 4 Watts, 420; Brackett v. Norton, 4 Conn. 517; Gleason c. Clark, 9 Cowen,. 57; Runyan v. Nichols, 11 Johns. 547; Hopping v. Quin, 12 Wend. 517; Porter v. Ruckman, 38 N. Y. 210; Wills v. Kane, 2 Grant Pa. 60; Fletcher v. Winter, 3 Fost. & F. 138; Stokes V. Trumper, 2 Kay & J. 232. ' Currie v. Cowles, 2 Bos. 542. See Walsh v. Shuman, 65 111. 471. § 335 LIABILITY OF CLIENT TO ATTORNEY. 557 illegal or immoral.^ Nor can a lawyer recover for absolutely useless work.^ Actions for attorneys' fees should be brought in the name of the person directly employed or retained.^ If the work was performed by a partnership, then all the plaintiffs should be duly qualified attorneys.* It has been held that where only one of the firm is an attorney of the court where the business is done, the suit cannot be maintained in the name of the firm.^ The action should always be brought against the party retain- ing the attorney. If a party for whose benefit the attorney's services 'are required authorize another to retain an attorney for him, this is tantamount to a direct retainer by the principal ; but if the third party, acting only under a general authority, employ and instruct the attorney, the third party only and not the principal can be sued.^ So where one attorney does busi- ness for another, the attorney employed generally looks to the attorney who employs him and not to the client. If the attor- ney employing another wishes to escape personal responsibility, he must give express notice that the business is to be done on the credit of the client ; and it is no defense that the business was 1 Treat v. Jones, 28 Conn. 33i; Hallett v. Oakes, 1 Cush. 296; Arrington v. Sneed, 18 Tex. 135; Trist v. Child, 27 Wall. 441. 2 Hill V. Peatherstonhaugh, 7 Bing. 569; S. C. 5 Moore & P. 541; Shawjj. Arden, 9 Bing. 287; 2 Moore & S. 341; Huntley «. Bui wer, 8 Scott, 325; 6 Barn. & C. Ill; Brady v. Carter, 12 Ad. & B. 373; Symes v. Nepper, 12 Ibid. 337. 3 See Pinley v. Bagnall, 3 Doug. 155, where the plaintiff, an attorney was clerk to another attorney, and by arrangement entitled to the benefit of the common- law business transacted in the oflSce, it was held that he was entitled to sue a client for common-law business transacted for him in such office, though no personal retainer was given to the plaintiff. So a member of a law firm may sue in his own name for a demand due the firm, if the business from which it arose was , conducted in his name solely. (Piatt v. Halen, 23 Wend, 466.) But the other party, or defendant, may set off a demand against the firm. (Lansing v. McKil- lup, 7 Co wen, 416.) The employment of an attorney to conduct a cause is a per- sonal trust and confidence; it cannot be delegated except by consent of the client. (Hitchcock u. McGee, 7 Port. 556; Johnson v. Cunningham, 1 Ala. 249. See also, Briggs v. Georgia, 10 Verm, 68; Matter of Bleakley, 5 Paige, 311.) * Williams v. Jones, 5 Barn. & C, 108. 5 Arden v. Tucker, 1 Moody & E. 191; S. C. 5 Car, & P. 258; Holt w, Vincent, 4 Taunt. 452 ; Latham v. Hyde, 1 Cromp, & M. 128. Where an attorney carried on business under the firm of A. & Son, but the son was not a partner, but acted as clerk to the father, at a salary, it was held that A might maintain an action in his own name for a bill of costs for business done. (Kell v. Naiuby, 10 Barn. & C, 205; Moody & R. 76.) 6 Ambrose i'. Rose, Skin. 217; 2 Show. 421. 558 LIABILITY OF CLIENT TO ATTORNEY. § 335 known by the plaintiff to be done for the benefit of the client.^ In some cases of services performed by an attorney payment of costs by custom devolves on some other one than the party othervirise to be sued, as in cases of loans on mortgages, vi^here, though the costs ultimately fall on the mortgagor, the mortga- gee's attorney cannot sue him for the amount.^ In England, the remedy of an attorney for his costs, aside from his lien, is either by action or attachment. If the bill has been taxed he may choose either ; if not, he is confined to his action. The action may be either debt or assumpsit — it is usu- ally the latter.^ It does not seem to have been settled whether an attorney or solicitor could support a bill in equity for his bill of costs. It has been objected to such a bill that there is full and effectual relief at law, the relief being merely the payment of a sum of money. But in the case of a bill by a clerk in court against a solicitor, to which there was a demurrer on the ground that the suit was an attempt to give a jurisdiction to the court of chancery which was unusual and unnecessary. Lord Chan- cellor Eldon overruled the demurrer.* An indebitatus assumpsit lies in favor of an attorney who is retained by one person for another. But the employer must promise to pay, and the action is on the express promise against 1 Serace v. "Wliittlngton, 2 Barn. & C. 11. 2 Eigley v. Dakin, 2 Younge & J. 83, 150. As to what in the way of compen- sation for costs, etc., an attorney may or may not recover, see Breekenridge v. MTarlaue, Addis. 49; Gray v. Breekenridge, 2 Pa. 75, overruling jNIoouey v. Lloyd, 5 Serg. & E. 412; Foster v. Jack, i Watts, 334; Stevens v. Monges, 1 Hard- ing, 127; Delaware Ins. Co. v. Gilpin, 1 Binn. 501; Duncan v. Yaucy, 1 McCord, 149; Downing);. Major, 2 Dana, 228; Gay v. Capers, 1 Comst. 198; Lecatt v. Sal- lee, 2 Port. 115; Morgan v. Currie, 3 Marsh, 294; Rankin v. McDowell, 2 Marsh, 621; McLain v. "Williams, 8 Yerg. 230; Rush v. Larue, 4 Litt. 417; Caldwell c. Shepard, 6 Mon. 392; MoWilliams v. Hopkins, 1 Whart. 276; Hopping v. Quinn, 12 Wend. 517 ; Clendinnen v. Black, 2 Bail. 488 ; McFarland v. Crary, 8 Cowen, 253; McDonald v. Page, Wright, 121; Hopewell v. Amwell, 2 Halst. 4; Christy >:. Douglass, Wright, 485; Scott v. Elmendorf, 12 Johns. 315; Brady t'. Mayor, etc., 1 Sand. 569; Satterlee v. Frazer, 2 Sand. 141; Merritt v. Lamhert, 10 'Paige, 352; AVallis V. Lambert, 2 Denio, 607; "Wilson v. Burr, 25 Wend. 386; Van Alta v. Mc- Kinney, 1 Hardr. 235 ; Stevens v. Adams, 23 Wend. 57 ; S. C . 26 Wend. 451 ; Davis V. Downer, 10 Vt. 529; ^^'ebb o. Browning, 14 Miss. 353; Hall v. Washington Co. 2 Greene, 473; 1 Mann, (Mich.) 461. 3 Thursby D. Warren, Cro. Car. 159; Milyard's Case, 1 Mod. 118. ■• Barker v. Dacie, 6 Ves. 681. See, also. Parry v. Owen, Amb. 109; Atk. 740; Anon. Mosely, 178; Raueleigh v. Thornhill, 1 Vern. 202; Norris v. Bacon, 1 Vern. 312. § 336 LIABILITY OF CLIENT TO ATTORNEY. 559 the person making It.' and under the Statute of Frauds it must generally be in writing.^ § 336. Liability of client. — In an action on an attorney's bill against two, it is not sufficient to prove a joint employment and a joint promise to pay after the delivery of the bill, but it must be shown that the business was done for the joint benefit.^ In attempting to fix liability upon clients for the acts of their attorneys there must be some evidence of a retainer.* - If an attorney in conducting a cause does not communicate to his client an offer of compromise made by the other party, but proceeds with a view to obtain further compensation, he cannot afterwards charge his client with the costs iacurred. But as it is the duty of an attorney to communicate such offers, the pre- sumption is that he does so until the contrary is proven.^ If an attorney has reasonable and probable grounds for com- mencing an action, and does so, but afterwards desists from prosecuting it because he afterward discovers that the cause cannot be successfully proceeded with, he is entitled to recover his costs from his client.^ If an administrator employs counsel to manage a suit pending against his intestate at the time of the latter's death, he becomes personally liable for the counsel fees.'^ The contract of an attorney retained to conduct an action is continuing, and, as a general rule, can be determined by him 1 Ambrose v. Eose, 2 Show. 421; Skin. 217; Sands v. Trevilian, Cro. Car. 107. 2 Stark. 270, 3 Hellings v. Gregory, 10 Moore, 337; 1 Car. & P. 627. * Crook V. Wright, B. & M. 278. s Still V. Thomas, 8 Car. & P. 762. 6 Lawrence v. Potts, 6 Car. & P. 428. See as to liability for drawing leases, WebbB. Ehodes, 3 Bing. N. C. 732; 4 Scott, 497; 3 Hodges, 138; Baker v. Merry- •weather, Car. & K. 737. See Campion v. King, 6 Jur. 35. For drawing mar- riage settlements. Hay ward v. Fiott, 8 Car. & P. 59; Grissel v. Robinson, 3 Phill. (N. C.) 10; 3 Scott, 329; 2 Hodges, 138; Helpst). Clayton, 17 Com. B. N. S. 553; 10 Jur N. S. 1148; 34 Law J. C. P. 1. See generally as to liability of client, Gray V. Waiteman, 7 Moore, 467; Beeke v. Penn, 7 Car. & P. 397; Parkerw. Robinson, 7 Ibid. 241; Dupen u. Keeling, 4 Car. & P. 102. ^ Livermore v. Rand, 26 N. H. 85. One wishing to be appointed a sequestra- tor, employed an attorney to conduct the proceedings. The petition was signed by others, some of whom spoke to the attorney, and requested him to press the proceeding; but this, it was held, did not bind the others to pay counsel fees. ■Cook V. Mackrell, 70 Pa. 12. 560 LIABILITY OF CLIENT TO ATTORNEY. § 337 only on reasonable notice.^ He cannot generally sue for his bill until the termination of the suit ; he may, however, give a rea- sonable notice to his client to supply him with adequate funds, and in case of refusal he may sue him for his costs.^ And if a client repudiates his retainer of an attorney to conduct a suit, the latter is entitled to bring an action for his costs, without waiting the final result or completion of the suit.^ An attorney, properly qualified and practicing as such, in the absence of a statutory provision, or of a rule of court prohibit- ing it, can recover for services rendered upon the employment of a client, although he may not have been formally admitted to practice in the court where the services were rendered. Even if there be a statute or rule prohibiting such a recovery, unless there has been a formal admission, yet if the services are ren- dered by a firm, one of whom is duly admitted, the partners may recover in a joint action for such services.* An attorney has no legal claim upon a husband for services and disbursements in defending his wife against a suit brought by him for divorce. The only mode of securing payment by the husband in such case is by an order of court for a sufficient allowance for the purpose.^ § 337. Implied obligation. — An instruction that " where there is a general employment for an agreed service of an at- torney, that employment extends until the final termination of the case in the court of last resort, and no additional sum can be charged for services rendered, unless there is an express agreement to pay for the same," is erroneous. It ignores the fact of any further implied obligation.^ Where a co-defendant in a suit, being an attorney, specially contracted with his co-de- 1 NichoUs V. Wilson, 2 Dowl. N. S. 1031 ; 11 Mees. & W. 106; 12 LajW J. Ex. 266; Harris v. Osborn, 2 Gar. & M. 629; i Tyr. 445. 2 Whitehead v. Lord, 7 Ex. 691; 21 Law J. Ex. 239; Van Sandan ;>. Bro-mie, 9 Bing. 402; 2 Moore & S. 543; Hoby i\ Built, 3 Barn. & Ad. 350; 1 D. P. C. 715; Wandsworth v. Marshall, 2 Oromp. & J. 665; Coppinger v. Lynnott, 3 Ir. C. L. R. 563. 8 Hawks V. Cottrell, 27 Law J. Ex. 369; 3 Hurl. & N. 243. *Harland v. Lilienthal, 63 N. Y. 438; Arden v. Tucker, 4 Barn. &- Ad. 815; Turner v. Reynall, 14 Com. B, N. S. 328. 6 Cooke V. Newell, 40 Conn. 596; Shelton v. Pendleton, 18 Conn. 421. " Bartholomew v. Langsdale, 35 Ind. 278. § 338 LIABILITY OF CLIENT TO ATTORNEY. 561 fendants in the action, for a stipulated sura, to defend the suit in behalf of himself and his co-defendants, he to employ and pay assistant counsel, the assistant counsel called into the case by the attorney, and who performed valuable services in the defense of the case with the knowledge of the other defendants, and without any knowledge on their part of the special contract existing between said attorney and his co-defendants, were, in an action against all the defendants, held entitled to recover compensation for the services rendered by them in the defense of the suit.i § 338. Pleading and proof. — In an action for an attorney's bill of costs, it seems strictly necessary only to adopt the com- mon counts for work and labor, etc., though it is usual to de- scribe the plaintiff as an attorney, and to state that he did the work in that character. Thus, "for work before that time done as an attorney and solicitor, and materials for the same provided by the plaintiff for the defendant, and otherwise, upon his re- tainer, and at his request, in and about the prosecuting, defend- ing, and soliciting of divers causes, suits, and business for the defendant, and for divers journeys and attendances performed and given in and about that work by the plaintiff, for the de- fendant, and at his request, and for fees due and payable to the plaintiff in respect thereof, and for other the work and labor of the plaintiff, by him done and performed, in and about drawing, copying, and engrossing divers conveyances, deeds, and writings for the defendant, and also for divers journeys and attendances before that time performed and given in and about the business of the defendant, at his request," with common counts on an account stated, and for money paid and disbursed, etc. The plaintiff must, under the general issue, if pleaded, prove his retainer or employment by the defendant, and the perform- ance of the work for which the charges are made, and that those charges are reasonable. The plaintiff should also prove all facts the onus of which is cast upon him by the pleadings, as under the plea of the Statute of Limitations, that the busi- 1 MeCrary v. Ruddick, 33 Iowa, 521. A. & C— 36. 562 LIABILITY OF CLIENT TO ATTORNEY. § 338 ness charged was done within the statutory time, or was only completed within that time.^ And when want of qualification is pleaded, he must show his admission,^ and compliance with the law, when non-compliance is pleaded.^ In other cases, where the defense is a special agreement, maintenance, cham- perty, or illegality, the burden of proof is on the defendant, and it is sufficient for the plaintiff to make out his prima facie case as indicated above.* Matters of special defense should be specially pleaded by the defendant, as the Statute of Limitations,^ the want of a legal qualification,'' or that the subject-matter of the services was ille- gal. '^ The defendant may also pay money into court, and plead the same in the ordinary way.^ Although the retainer need not, in ordinary cases, be in writ- ing, howevei: desirable,^ still full proof of the retainer is gener- ally required. So it is held that the mere delivery of papers to an attorney by a party, Avith an intimation from the latter that he was entitled to an estate, and would pay the attorney if he recovered it, is insufficient to entitle the attorney to recover the costs of an ejectment brought for the estate ; nor will an attor- ney be entitled to recover costs for professional services per- formed in the character of trustee for a party, unless express provision to that effect ig made in the trust deed.^" In actions against more than one defendant it is not enough to prove a iMartindale v. Falkner, 2 Com. B. 706; M'DoAvell v. Potter, 8 Barr. 187; Am- "brose v. liose, 2 Show. 421. 2 See Rex w. Crossley, 2 Esp. 526; Jones v. Stevens, 11 Price, 2.51: Pearce v. Whale, 5 Barn. & C. 39. 3 Beck V. Mordaunt, 2 Bing. N. C. 140; 4Dowl. 112; Robinson (. Rowland, 4 Dowl. 271. ■> Pearce v. Whale, 5 Barn. & C. 38; 7 Dowl. & R. 512. 5 Oliver v. Thomas, Ld. Raym. 2 ; Martindale v. Falkner, 2 Com. B. 706. See Hill V. Allen, 2 Mees. & W. 283 ; Runyan r. Nichols, 11 Johns. 547; Orcutt r. Pettit, 4 Denio, 2.33; Guy n. Gower, 2 Marsh. 273, « Humphreys v. Harvey, 1 Bing. N. c. U2; AVilliams v. Jones, 2 Q. B. 276. ' See Flight v. Iceman, 4 Q. B. 883; 12 Law J. Q. B. 353; Pechell e. Watson, 8 Mees. & W. 691; Peate v. Dicken, 1 Cromp. M. & R. 422; 3 Dowl. 171. 8 Stevenson v. Berwick, 1 Q. B. 164. '■> Ante, see. 185 ; Osborn v. Bank, 9 Wheat. 738. See Hotchkiss < . Leroy, 9 Johns. 142; Burghart v. Gardner, 3 Barb. 64; Briggs v. Georgia, 15 \t. 71; Smith V. Lyford, 11 Shep. 147 ; St. Albans «. Bush, 4 \t. 38 ; Kellogg v. Morris, 5 Eng. 18; Cochran v. Newton, 5 Denio, 482. i« In re Sherwood, 3 Beav. 338; 10 Law J. N. S. Ch, 2; Gilbert r. Dyneley, 1 Scott, N. S. 3C4; Cochran v. Newton, 5 Denio, 482. § 338 LIABILITY OF CLIENT TO ATTORNEY. 668 joint employment, and a joint promise to pay ; but it is also necessary to show that the business was done on their joint ac- count and joint retainer.^ In actions against defendants for the amount of a bill of costs incurred on behalf of a third party, it is usually necessary to prove a guarantee in writing, under the Statute of Frauds, but not if the party sued rendered himself personally liable by re- taining the attorney in his own name ;2 and a husband has been held liable for the amount of a bill of costs incurred in proceed- ings against him on behalf of his wife, rendered necessary by his ill usage of her.^ And so where a female party to a suit in equity married while the proceedings were pending, the hus- band was held liable for his proportion of the bill, although there was no original retainer by him :* and a retainer to com- mence a suit which abates is evidence of a retainer to commence another action.^ The plaintiff must prove the performance of the work charged for, and that the charges are reasonable. Where the defendant has had an opportunity of taxing the plaintiff's bill of costs, a bill having been delivered, he will be precluded at the trial from objecting to the reasonableness of the charges;'' but otherwise the requisite evidence must be given by some competent person.' When an attorney sues upon a quantum meruit for profes- sional services, his professional standing is a proper subject of inquiry as affecting the value of his services. And the amount of his professional business may be inquired into as tending to show his professional standing.^ Evidence to show the nature and importance of the controversy in which the services were 1 Hellings v. Gregory, 10 Moore, 337 ; 1 Car. & P. 627; Pawcett v. Weathall, 2 Car. & P. 305 ; Starving v. Cousins, 1 Gale, 159. But see Davis v. Downer, 10 Vt. 529; Seeley v. Crane, 3 Green, 35. 2 Ambrose v. Eose, 2 Show. 421; Skin. 217; Sands v. Trevilian, Cro. Car. 194; Wilson V. Burr, 25 ■\\'end. 386. See Noel v. Hart, 8 Car. & P. 230; Howes v. Mar- tin, 1 Esp. K. P. C. 161. ' 8 Shepierd v. Mackoul, 3 Cowp, 326; Williams u. Fowler, 1 McClel. & T. 269. 4 Gray v. Wainman, 7 Moore, 467. s Cook V. Wright, 1 Euss. & M. 278. 6 Williams v. Faith, 1 Doug. 198; Anderson v. May, 2 Bos. & P. 237. ' See Scott v. Elmendorf, 12 Johns. 315; Hughes v. Mulvey, 1 Sand. 92; Brady V. Mayor, 1 Sand. 569; Price v. McGee, 1 Brev. 455; Gleason v. Clark, 9 Cowen, 57 ; Mumf ord v. Hawkins, 5 Denio, 355. 8 Phelps V. Hunt, 40 Conn, 97; Eobbins v. Harvey, 5 Conn. 335. 564 LIABILITY OF CLIENT TO ATTORNEY. § 338 rendered, what results depended upon it in other matters, and how other matters affected it and increased its gravity, is proper upon the question of the value of the services. When an attor- ney is called as an expert to speak of the value of professional services, the court may reject questions put to the witness, upon cross-examination, as to the income derived by him from the practice of his profession. Such testimony has not so direct a bearing upon the question of the capacity of the witness to speak as an expert as to entitle the defendant to the question.^ The attorney is not required to swear to every paper drawn or served, and how much it is worth. It is enough for him to prove in general terms the proceedings in a cause, the time oc- cupied in the performance of any part of the services by which their value was enhanced, and the value of the whole or in de- tail as he may elect. The value of the services may be proved by the opinions of attorneys, founded partly on their personal knowledge of the services, and partly upon the testimony of the plaintiff and others personally acquainted with them. The value of the property involved in a litigation is a legitimate sub- ject of inquiry and proof. The plaintiff may himself testify as to the value of his services.^ In cases of employment by public bodies, except corporations, the individuals actually giving the instructions are often the only persons liable for attorney's costs and fees. Sometimes the at- torney will be able to look only to the funds for remuneration, and is precluded from suing any individual.^ Where a ques- tion was not as to the personal liability of any of the parties, but as to the validity of an attorney's claim for the costs of busi- ness done for a town corporation, a resolution of the town coun- cil passed generally, authorizing certain proceedings, was held a sufficient retainer of the attorney without any formal or express resolution authorizing the particular steps taken in the Case.* ^ Harland i'. Lilienthal. 53 N. Y. 438. The delivery of a bill appears to have the effect of preventing the attorney from recovering more than is charged therein for the items Included in it. It is also said to afford strong presumptive evidence against additional items; but errors or omissions may be corrected or supplied. (Loveridge v. Botham, 1 Bos. & P. 49.) 2 Gariield w. Kirk, fi5 Barb. 464; Beekman r. Plainer, 15 Barb. 550: Lewis c. Trickey, 20 Barb. 387. 3 Reg. V. Lichiield, 10 Q. B. 534; 16 Law J. N. S. :!:Vi. i Reg. V. Lichfield, 10 Q. B. 5.34: 16 Law .1. X. S. 333. § 339 LIABILITY OF CLIENT TO ATTOENEY. 665 § 339. Proving retainer — Evidence of employment. An attorney cannot recover for professional services unless he can show in some way that he has been employed as such. The fact that his services in managing a cause are as beneficial to another party as to his own client, will not raise an assumpsit against such other party/ unless the services are accepted by the latter, and it was undei-stood he was to be also liable.^ But the employment may be established by circumstances as well as by direct retainer,^ as by recognition by the party as his attor- ney.* So, if a counsellor at law, having in his hands papers necessary to be used in the defense of a suit, enters upon that defense in the presence of the party for whom he appears, and retains the papers without objection, such facts are evidence of a retainer and promise to pay for his services, as well upon the particular occasion of the first appearance as afterward.® So where an attorney, who was employed by his client in the prosecution and defense of many suits, gave a voluntary appear- ance for him in a new suit brought against him upon a subject connected with suits then pending. About the time of serving this appearance the attorney told him that he had appeared for him, and he expressed no dissent ; it was held that the. attorney's appearance was not unauthorized, but under such facts he might well assume a retainer.^ The party employing an attorney or counsel to perform any service in his professional capacity, in the absence of a special agreement to the contrary, is personally responsible for any such services rendered. The general rule is, that the party employed looks to the employer for payment, and where a trustee employs an agent in the execution of his trust, such agent must look to the person employing him, individually, for his payment, and can have no claim on the trust fund. Wliether the employer 1 Chicago Bank v. Larned, 26 111. 218; Koselins i'. De la Chaise, 5 La. An. 482; Cooly );. Cecile, 8 Ibid. 51; Michon v. Gravier, 11 Ibid. 59B; Turner v. Myers, 23 Iowa, 391; Campbell v. Kincaid, 3 Mou. 5(jB; Webb n. Browning, 14 Mo. 354. 2 Savings Bank v. Benton, 2 Met, (Ky.) 240. 3 Hoad V. "Ware, 34 Ga. 328. See Graves r. Look wood, 30 Conn. 276; DeWolf V. Strader, 26 111. 225; Dorsey v. Goodenow, Wriglit, 120; Smith v. Lyford, 24 Me. 147; Ealer v. McAllister, 19 La. An. 29; Barker v. York, 3 La. An. 90. ' * Hotchkiss V. Leroy, 9 Johns. 142; Burghart w. Gardner, 3 Barb. 64. 5 Goodall V. Bedel, 20 N. H. 205. But see Seeley v. North, 16 Conn. 92. " Bogardus v. Livingstone, 7 Abb. Pr. 428. 566 LIABILITY OF CLIENT TO ATTORNEY. § 339 had or had not authority to make an agreement with the attorney, is immaterial ; that is a question between him and the cestuis que trust.^ The natural presumption of Jaw is, that an action com- menced by a regular responsible attorney is authorized ; and under ordinary circumstances the appearance of a member of the bar as an attorney of record in the place where the party resides would be evidence, as between the attorney and client, of his having been retained in a case in which he had conducted the suit.^ It is sufficient evidence of an employment as an attor- ney in a suit, if the client makes affidavit to the truth of the an- swer which the attorney has drawn, especially if the attorney has been recognized by the attorney of the other side as counsel in the suit.^ And the delivery of notes to an attorney for collec- tion, by the cashier of a bank, is a sufficient retainer so as to bind the bank for costs incurred upon them.* A son brought a replevin suit in his own right for a horse, executing a bond upon which his mother was surety. The case was appealed to the District Court, and an attorney was there employed by the son to assist in the trial. Judgment beino- there rendered against the plaintiff and his mother as surety on the bond, he employed the' attorney to commence a suit in equity in his own and his mother's name to restrain the collection of the judgment, in which plaintiffs failed ; whereupon they ap- pealed to the Supreme Court. It appeared that the attorney had never seen the mother ; that- she never personally requested him to perform any services for her ; but that she knew of the proceedings. The attorney sought to charge her with the payment of his fees, which the court disallowed, saying: "When it appears that an attorney commenced a suit in the name of the principal and surety without being requested by such surety to perform any services for her, the single fact that she knew of his proceedings will not make her liable for his services. The express contract with the son and his primary liability, in the absence of other proof, justify the conclusion that the son and not the mother was the one to whom the attorney was to look for his pay. 1 Bowman v. Tallman, 27 How. Pr, 212. s Hood o. Ware, 34 Ga. 328. 2 Eoselius V. Delachaise', 5 La. An. 482. ^ Eastman i-. Coos Bank, 1 N. H. 26. § 340 LIABILITY OF CLIENT TO ATTORNEY. 667 " It was the attorney's duty to prove his retainer by the per- son sought to be charged. This he might do by showing that the defendant called upon him in regard to the business ; that she executed his directions in connection therewith ; that she was present at the trial while he was managing it on her behalf; or that she spoke of or recognized him in some manner as her attorney."' ^ In the absence of an express retainer, an attorney may prove that the person sought to be charged conferred with him in re- gard to the suit ; executed his directions in connection therewith ; makes affidavit to the truth of the answer which the attorney has drawn ; was present at the trial which the attorney was managing in the client's behalf without making any objection ; entrusts to the attorney papers necessary to the successful pros- ecution of the suit ; or that the client acknowledged or in some manner recognized the attorney in the presence of third persons : all these things are evidences of a retainer, and will be strength- ened by the fact that the attorney was acknowledged as such by the counsel of the opposite side. If an attorney, having in his hands papers necessary to be used in the defense of a suit, enter upon that defense in the presence of the party for whom he ap- pears, and retains the papers without objections, such facts are evidence of a retainer and promise to pay for his services, as well upon the particular occasion of the first appearance, as after- wards.^ § 340. Evidence for plaintiff. — It is necessary for the plaintiff to prove a retainer. The fact that his services ren- dered for some one else were also beneficial to the defendant, is not enough, without proof of retainer by the latter.^ The re- tainer, however, may be inferred from all the circumstances of the case.* The burden of proof is on the attoraey to prove the 1 Turner v. Myers, 23 Iowa, .391 ; !l Johns. 142; 1 G. Greene, 117; 2 Ind. 630. 2 Goodall V. Bedell, 20 N. H. 205. 3 Wharton on Agency, sec. GIG; Turner v. Myers, 23 Iowa, 391; Barker v. York, 3 La. An. 90; Burghart. v. Gardner, 3 Barb. 64; Chicago R. E. Co. v. Larned, 26 111. 216; Roselius r. Delachaise, 5 La. An. 482; Micheu v. Granice, 11 La. An. 596; Savings Bank v. Benton, 2 Met. (Ky.) 240. 4 Hood V. Ware, 34 Ga. 328; Graves v. Lockwood, 30 Conn. 276; Hotchkins v. Leroy, 9 Johns. 142; Bowman v. Tallman, 27 How. 212; Goodal v. Bedel, 20 N. 668 LIABILITY OF CLIENT TO ATTORNEY. § 340 extent and value of his services, and the fairness of his charge and the amount chvimed.^ Evidence that one who had a claim which he intended to prosecute at law, sent for an attorney and employed him to assist him as counsel through the whole case, and that the attorney agreed so to do, and gave him advice sev- eral times, will warrant a finding for an attorney, in an action by him for fees.^ This proof may be by parol,^ and the opinion of professional witnesses may be received as to the value of the services, but such opinions are not conclusive.* When the action is upon a quantum meruit, the professional standing of the attorney may be inquired into, as affecting the value of his services, and so may the amount of his business, as tending to show his profes- sional standing.^ The measure of compensation depends on the legal knowledge and professional activity required, and also upon the responsi- bility taken.^ An attorney in collecting a debt is entitled to commissions, dependent upon the skill and care applied, and the amount collected.^ * The nature and extent of the services of counsel may be proved by parol. Their signatures and pleadings need not be shown, when they have been employed to advise and assist other counsel. The opinion, however, of witnesses as to the value of services is not conclusive, but when corroborated, and giving apparently a fair estimate, should be adopted.^ When a note is H. 205; Bogardus v. Livingston, 7 Abb. Pr. i28; Fore v. Chandler, 24 Tex. 146. See Seeley «. North, 16 Conn. 92, Briggs v. Georgia, 15 Vt. 61; Smith o. Dough- erty, 37 Vt. 530. iStoww. Hamlin, 1 How. Pr. 452; Planters' Bank v. Hemberger, 4 Cold. 578; McMahon v. Smith, 6 Keisk. 167. 2 Perry v. Lord, 111 Mass. 504. 3 Brewer v. Cook, 11 La. An. 637. ■* Ibid. Vilas v. Downer, 21 Vt. 419. '■ Phelps V. Hunt, 40 Conn. 97. 6 Wharton on Agency, sec. 616; Vilas v. Downer, supra; Macartys Succession, 3 La. An. 518; Lee's Succession, 4 La. An. 578; Virgin's Succession, 18 La. Au. 42; Kentucky Bank v. Cowles, 7 Pa. 543; Duncan v. Yancey, 1 McCord, 149. ' Morel V. New Orleans, 12 La. An. 485; Commandeur v. Carrollton, 15 La. An. 7; State v. Hawkins, 28 Mo. 366; Quint v. Ophir Co., 4 Nev. 304; Gordon v. Mil- ler, 14 Md. 204; Leach v. Strange, 3 Hawks, 121; Farmers' Loan Co. u. Mann, 4 Eobt. 356. 8 Brewer v. Cook, 11 La. An. 637; Succession of Ayells, 24 La. An. 162; Cullom V. Mock, 21 La. An. 687. § 341 LIABILITY OF CLIENT TO ATTORNEY. 569 given for services to be rendered, its non-payment justifies the attorney in refusing the continuance of such services ; and if those rendered before maturity of the note be worth its amount, he will recover on it.^ A solicitor is entitled to charge for at- tendance, if he actually attends upon the hearing, though he does not hear the whole argument, or take any part therein.^ A note given for a fee may be collected though the cause be compromised before the payee has performed all the services he was expected to render.^ Where an attorney becomes incapac- itated from acting through no fault of his own, as from being elected to the bench, his part-performed contracts for services are divisible, and he may recover for what he had already done.* An attorney cannot claim compensation from two conflicting parties, and it appears that counsel for plaintiif, in a suit for dis- solution, cannot claim compensation as associate counsel for the receiver.^ Retainer in appellate court. — A retainer to conduct a suit in the lower courts does not necessarily imply a retainer to carry the case up to the court of last resort. But when a case is en- trusted to an attorney for appeal to a higher court, he is not responsible for the merits or demerits of the appeal, but is en- titled to payment for his services in any event.^ § 341. What the defendant may shovr. — In an action for fees the client may prove, as a part of his defense, that the case was a plain case, requiring but little labor, or skill, or learning, or time, or if it required skill and attention, that these were not bestowed. The value of a lawyer's services depends upon his skill and learning, and the attention he gives to the business of his client. Proof, therefore, of his skillful conduct of his case, or of his negligent or unskillful treatment of it, is an important inquiry. Anything which shows that the plaintiff has no right of recovery at all, or to the extent claimed on the case as he i C;ooley V. Doherty, 5 La. An. 163. 2 Wendell v. Lewis, S Paige, 613. 3 McLain v. Williams, 8 Yerg, 230. See Clendinen v. Black, 2 Bail. 488. 4 Baird v. Ratcliflt, 10 Tex. 81. 5 Adams v. Woods, 8 Gal. 306. e Case v. HotclikiSs, 3 Keyes, 334; S. C. 3 Abb. Pr. N. S. 381. See Hopkins v. Mallard, 1 Greene, 117; Dearborn v. Dearborn, 15 Mass. 316. 570 LIABILITY OF CLIENT TO ATTORNEY. § 341 makes it, may be given in evidence upon an issue joined by an allegation in the complaint, and its denial in the answer.' A defendant may, after a payment into court, show that the work was to be done fo'r costs out of pocket merely, and not for reo-ular fees and charges.^ An agreement with an attorney that he shall get his costs out of the fund in the suit, implies the condition that he is continued in the conduct of the suit, until there is a fund in court available for costs.^ The defendant may, under the general issue, disprove the re- tainer and employment.* He may show, for instance, that the plaintiff performed the work in the character of trustee,^ or that plaintiff and defendant were in partnership in the transaction which gave rise to the litigation,^ or that plaintiff agreed to per- form the work without compensation,'^ or undertook to charge only costs out of pocket. But if an attorney undertake to charge a party only costs out of pocket, " in case damages or costs should not be recoverable," and the party does recover a ver- dict, but the defendant becomes insolvent, the attorney may re- cover the full costs.^ But a mere misrepresentation by the client, which the attorney might, by proper investigation, have corrected, will not entitle the attorney to sue for his full costs.^ The defendant may also show that it was understood and agreed that the attorney should look to some other party for payment.^* The performance of the work may be disproved by showing that- the business charged was performed without the assistance of the plaintiff,^^ or was never completed. ^^ But if the non-comple- tion arise, not from the plaintiff's, but from the defendant's de- fault, as the latter's omission or neglect to supply funds, etc., it 1 Bridges v. Page, 13 Cal. 640. 2 Jones V. Eeade, 5 Ad. & E. 52!]; 2 Har. & W. 382. 3 Hollings V. Booth, 2 Fost. &- F. 220. * Aldis V. Gardner, 1 Car. & K. Sfii. 5 Moore v. Froud, 1 Jnr. 653. 6 Milliurn r. Codd, 1 M. & Eolo. 238; 7 Barn. & C. 419. ' Ashford v. Price, 3 Stark. N. P. G. 185. 8 In re Stretton, 14 lilees. & W. 806. 9 Thwaites v. Mackerson, 3 Car. & P. 311. 1" Spurrier v. Allen, 2 Gar. & K. 210. 11 Hopkinson v. Smitli, 1 Bing. 13; Noel v. Hart, 8 Car. & P. 230. 12 Nichols r. Wilson, 11 Mees. & W. 106; 2 Dowl. N. S. 103; 12 Law J. N. S. 206; Cresswell !). Byron, 14 Vea. 272. § 341 LIABILITY OP CLIENT TO ATTORNEY. 571 does not constitute a defense. ^ The defendant may show that the work was totally useless to the client ; but it should be en- tirely useless to constitute a defense as where performed after an ofEer of compromise, of which the plaintiff, by neglecting to communicate it to his client, deprived him of the benefit.^ And so, where the services, though at first advantageous to the de- fendant, were afterward rendered abortive by the attorney's neglect.^ The defendant may, under the general issue, object to items in the plaintiff's charges as incurred for useless work ; but this must be clearly established.* The mere imputation of neg- ligence on the part of the attorney by which the defendant was prejudiced, so long as the immediate object for which the attor- ney was employed was not entirely defeated, can only be made the subject of a cross action;^ and where negligence is relied upon as specially set up, it seems that it must have been the only cause of failure in order to avail the defendant, and defeat the plaintiff's claim for remuneration.^ When special pleas are relied upon, the burden of proof is of course upon the defend- ant. Where an attorney prepares a document, which turns out to be illegal, but concerning the illegality of which there was reasonable doubt, he is entitled to recover for preparing it.'^ Fraudulent conduct on the part of the attorney will be a good defense to an action for fees;^ and so where the advice given to the client was clearly that the defendant should commit a breach 1 Eowson V. Earle, Moody & M. 538; Van Sandan v. Browne, 9 Bing. 402. 2 Hill ('. Featherstonehaugh, 7 Bing. 569; Hill v. Allen, 2 Mees. & "VV., 284; Symes v. Nijjper, 12 Ad. & E. 277, n. ; Bracey v. Carter, Ibid. 373. See Cousins V. Paddon, 2 Cromp. M. & R. 547, 556; Randall v. Ikey, 4 Dowl. 682; Huntley v. Bulwer, 6 Bing. (N. C.) Ill; Sill v. Thomas, 8 Car. & P. 762. 3 Bracey v. Carter, 12 Ad. & E. 373. 4 Sliaw V. Arden, 9 Bing. 287. 6 Templar v. McLachlan, 2 New Rep. 136; Edward v. Cooper, 3 Car. & P. 277. In one ease, where an action having been brought against an attorney for neg- ligence, in which action the jur,y gave a verdict for the plaintiff, finding also that the attorney had been guilty of gross negligence, and then the attorney brought an action for his bill of costs, the court refused to stay proceeding.s in the latter action. Smith v. Eolt, 2 Dowl. P. C. 62. See Dax u. Ward, 1 Stark. 409; Pasmore v Birnie, 2 Stark. 59; Johnstone v. Alston, 1 Camp. 176. See also A\'ilson v. Russ, 7 Shep. 420; Suydam r. Vance. 2 McLean, 99; Hogg r). Martin, Riley, 156; Cox v. Livingston, 2 Watts & Serg. 103. 7 Potts V. Sparrow, 6 Car. & P. 749. 8 Brackett v Norton, 4 Conn. 517. 572 LIABILITY OF CLIENT TO ATTORNEY. § 342 of the peace, as to engage in a riot.' But fraud or unfaithful- ness of an attorney in one matter intrusted to him will not de- prive him of his right to compensation for other independent services wrliich were duly performed.^ In an action for fees by an attorney against his client, the latter may show, under the general issue, that the attorney conducted the business so negli- gently that his services were of no benefit to the client, and thus defeat the whole claim ; but if the evidence be merely in diminu- tion of the value of the attorney's services, then notice should be given with the general issue. ^ It is said that if an attorney neglects to pay over money to his client, when collected, for an unreasonable time, he is enti- tled to no compensation for his services in recovering it.* It is a good defense that the attorney knew of the full settle- ment of the cause, and yet unnecessarily, and without authority, took further proceedings. For such unnecessary services he cannot recover.^ An attorney cannot recover against his client the costs of a suit in which judgment is set aside for irregular- ity committed by himself, nor the costs of opposing the motion to set aside the proceedings ; nor can he recover for money paid for his client, if it were paid to satisfy costs of a judgment of discontinuance suffered by his ignorance or neglect.^ Nor is he entitled to compensation when he improperly detains money un- til he is sued for it,'' nor when, through his neglect, his services are totally without value.^ § 342. Attorney's services, when considered as neces- saries. — An infant may be liable, as for necessaries, for serv- ices of an attorney rendered in defending him; but it appears 1 Treat v. Jones, 28 Conn, 334; Arrington v. Sueed, 18 Tex. 135, 2 Currie v. Cowles, 6 Bosw, 452, 3 Gleason v. Clark, 9 Cowen, 57, See Eunyau v. Nichols, 11 Johns. 547, Proof, in such an action, that judgment, as in case of nonsuit, was obtained against the client, is not, per se, evidence of negligence. (Gleason v. Clark, 9 Cowen, -57,) « Wills V. Kane, 2 Grant Cas. 60. 5 Elwood V. Wilson, 21 Iowa, 523. See Warner v. Hoffman, 4 Edw, 381, As to fees in consolidated suits, see Brackett v. Sears, 15 Mich, 244, ^ Hopping V. Quin, 12 Wend, 517, ' ' Bredin v. Kingland, 4 Watts, 420, 8 Nixon V. Phelps, 29 Vt, 198. § 343 LIABILITY or CLIENT TO a'ttornet. 573 'that it must be some proceeding personal to the infant, as serv- ices rendered by an attorney for an infant for the protection of the latter's rights of property are not necessaries, and the attor- ney cannot recover for them of the infant, whether he had or had not a guardian.^ Services" of an attorney rendered to a wife in prosecuting a libel for divorce against her husband are not necessaries,^ nor are those rendered in defending a libel of the husband against the wife ; ^ but if rendered in prosecuting the husband upon the complaint of his wife for breach of the peace, and necessary for her safety, they are necessaries.* If, however, there were "no reasonable grounds for instituting the proceed- ings, the rule may be different ; but if rendered in defending a groundless prosecution brought by the husband against the wife to compel her to find sureties to keep the peace, they are § 343. Measure of compensation. — The compensation is to be graduated with a proper reference to the nature of the business performed by the counsel for his client, and his stand- ing in his profession for learning and skill, whereby the value of his services is enhanced to his client ; and evidence of usage is admissible ^ to show what is the rule of compensation for simi- lar services to those sued for.'' " Concerning the ' pleader's salary,' " says the Mirror^ " four things are to be regarded : 1. The greatness of the cause ; 2. The pains of the Serjeant ; 3. His worth, as his learning eloquence, and gift ; 4. The usage of the court." In fixing the amount of a reasonable fee, the ex- amination should be directed to what is customary for such legal services, where contracts have been made with persons compe- 1 Barker v. Hibberd, 54 N. H. 539; S. C. 20 Am. B. 160; MeCriUis v. Bartlett, 8 N. H. 5B9; Muiison v. Washband, 31 Conn. 303; Phelps v. Worcester, 11 N. H. 61; New Hampshire Co. v. Noyes, 32 N. H. 345. 2 Morrison v. Holt, 42 N. H. 478. s Bay V. Adden, 50 N. H. 82; S. C. 9 Am. E. 175. 4 Morris v. Palmer, 39 N. H. 123. 6 Warner i'. Heiden, 28 Wis. 517; S. C. 9 Am. R. 515; Smith ii. Davis, 45 N. H. 5fi6. 6 Vilas f. Downer, 21 Vt. 419; Kentucky Bank u. Combs, 7 Barr. 543. See Sharswood's Professional Ethics, 151, 152. 'Ibid; Bodlish v. Fox, 23 Me. 94. 8 Chap. 3, sec. 5. 574 LIABILITY OF CLIENT TO ATTOENEY. § 343 tent to contract. The inquiry should be, not what an attorney thinks is reasonable, but what is the usual charge.^ When there is no express agreement, the court may allow the attorney better compensation than a taxed bill of costs affords; and such compensation cannot be defeated by an immediate assignment of the verdict by the client to a third party, and payment to the attorney of the taxed bill.^ The measure of compensation has been said to be the exercise of legal knowledge, the responsibility incurred, and the labor be- stowed, and sometimes the amount involved is considered.^ In suits requiring great professional labor, where much time must necessarily be consumed, and diligence and skill required in the preparation and management of them, an attorney may right- fully and legally charge, by way of counsel fee, a sum propor- tioned to the value of the services, and which a jury, upon evidence before them, are competent to ascertain and decide on.* An attorney who undertakes to conduct a suit upon the terms that he is not to be paid unless it succeeds, is not, it is held in England, entitled upon failure of the suit to recover money paid out of pocket.^ But where the attorney undertakes as follows : 1 Keynolds v. McMillan, 63 111. 46. An attorney may recover fees for services rendered to a corporation, though he be a stockholder, and the presumption is that his services -were legal. Where particular services are sued for, and the sums charged for the same were specified in a bill of particulars, it was held that the opinions of witnesses called as experts should have been confined to the value of the services so specified, and that it was not competent to prove the value of all the services, in gross, including supposed services beyond those sued for, (Barker v. Company, 3 Thomp. & C. 328.) 2 Cregier ti. Cheesebrough, 26 How. Pr. 200. 8 Succession of Macarty, 3 La. An. 518; Succession of Lee, 4 Ibid. 578. See Edelin v. Richardson, 4 Ibid. 503; Uzee v. Biron, 6 Ibid. 565; Succession of Vir- gin, 18 Ibid. 42. As to what is reasonable compensation in particular cases, see Farmers' Co. v. Mann, 4 Eobt. 356; Christy v. Douglass, Wright, 485; Kentucky Bank v. Cowles, 7 Pa. 54. In the absence of express contract, see Webb v. Browning, 14 Mo. 353; Smith v. Davis, 45 N. H, 566; Garr v. Mairet, 1 Hilt. 498. ^ Duncan v. Breithaupt, 1 McCord, 149. An instruction to the jury in a suit to recover counsel fees, that "if j)laintifls were employed by defendant to come to San Francisco, to Virginia City, or to Aurora, and there was no special agreement as to the amount to be paid, they can onlj^ recover the value of the services rendered at the place where they were rendered, with the addition of reasonable traveling expenses, and if the latter were paid by the defendant, then they cannot be recovered by the plaintiffs," was held clearly erroneous, and properly refused. {Quint v. Ophir, 4 Nev. 307.) The loss of other business may be taken into consideration, s Turner v. Tennant, 10 Jur. 429, § 343 LIABILITY OF CLIENT TO ATTORNEY. 575 " Should the damages or costs not be recoverable in this action I shall charge you costs out of purse only," the plaintiff obtained a verdict with damages and costs, but the defendant obtained his discharge under the Insolvent Acts, and the plaintiff only re- ceived a trifling dividend on his judgment ; it was still held that ^ the attorney was not limited by his undertaking to costs out of pocket only.' "Where an attorney undertook a prosecution for perjury on the defendant's behalf, agreed not to charge his full costs, except money out of pocket, and he disbursed a large sum toward carrying on the proceedings, but by negligence brought a defective indictment, and in consequence the prose- cution failed, it was held that he could not recover for the dis- bui'sements.^ An attorney is not entitled to recover his bill of costs for conducting an action which he has not terminated, but which has been discontinued, unless he shows satisfactory reasons for not proceeding with it, and gives his client reasonable notice thereof."^ Solicitors of companies cannot refcover costs in re- spect of business undertaken with full knowledge that it is be- yond the jDowers of the company, nor can they appropriate money belonging to the company received by them on a general account to the payment of such costs.* The attorney may, by express undertaking, limit his costs to a certain amount, and cannot then recover more.^ Where plaintiff sues in forma pau- peris, and obtains a verdict, whatever is the amount recovered, nothing is to be allowed on taxation of costs in respect of fees to his counsel, or by way of remuneration for the services of his attorney.^ The measure of the compensation of an attorney or counsel is to be governed by the express or implied agreement between him and his client. Implied agreements between attorney and 1 Stretton, In re, 14 Mees. & W. 806; 3 DoavI. & L. 278; 15 Law J. Ex, 16. 2 Lewis V. Samuel, 8 Q. B. 685; 10 Jur. 429; 15 Law J. Q.*B. 218. See Young v. Walker, 16 Mees. & W. 446. s Nicholls V. Wilson, 14 Jlees. & W. 106; 2 D. X. S. 1031. ■" Phoenix Life Insurance Co., In re, 1 H. & M. 433; 11 Week. B.. 984; 8 Law T. IsT. S. 728, 6 Moore v. Hall, 13 Week. E, 83; 11 Law T, X. S, 274; 17 Com. B. N. S. 760. 8 Dooley u. Great Northern Railway Company, 4 El, & B. 341; 3 Car. Law Eep. 110; 1 Jur. N, S, 228; 24 Law J. Q, B, 25, See also, Holmes v. Penny, 9 Sx. 584; 2 Car. Law Eep. 1004; 23 Law J. Ex. 132. 576 LIABILITY OF CLIENT TO . ATTORNEY. § 343 client stand upon the same footing with the like agreements be- tween other parties. Where there is no express agreement as to compensation, the attorney, in order to recover against his client, must now prove generally what services he has rendered. Evidence that a person was employed to render service does not prove that the service stipulated for has been rendered. The party claiming compensation must go further, and show the ex- tent of his performance and its value. The law will not pre- sume, from the mere proof of the undertaking, that the party has performed any valuable services under it.^ In the absence of a contract between attorney and client, fixing the value of the services of the former at the price to be paid therefor, the attorney has a right to a reasonable compensation ; but the jury are the proper judges of the value of such services, and in considering the reasonableness of such compensation, they may take into consideration all the circumstances of the case, and are not bound by the opinions of witnesses summoned as experts : but their opinions should be considered in connec- tion with the other evidence in the case. And the jury having once given their verdict, the appellate court will not interfere with it, unless the judge in the court below misled the jury by some misdirection.^ Where an attorney is employed generally to guard his client's interests in a particular matter, and bestows labor in investiga- tions which lead to the conclusion that his client has no real interest in the matter, he is entitled, nevertheless, to compensa- tion for his services. If plaintiff prove the services on account of which he sues, but introduces no proof of their value, the jury may, from their own knowledge of the business and affairs of society, fix a reasonable value and find a verdict accordingly.^ An agent of a bank, by means of false representations as to . his authority to employ attorneys for his principal, secured pro- fessional services for the bank in sundry attachment proceed- 1 Stow V. Hamlin, 11 How. Pr. 452. ■•i Rose r. Spies, 44 Mo. 20. The responsibility of determining the amount of fees due for professional services is a matter of great delicacy, and the court must be guided by a conscientious estimate of their value. (Succession of Mc- Garty, 3 La. An. 62.) Counsel fees are, in point of fact, from their very nature honorary, and are not susceptible of an accurate appreciation in money. (Edelin t). Richardson, 4 La. An. 503.) » Darby v. Knapp, 2 Mo. Appeal Reports, 486. § 343 LIABILITY OF CLIENT TO ATTOENEY. 577 ings, and on suit brought against the bank by the attorney for the value of his services, it turned out that the agent had no' such authority as represented, and so the bank could not be made responsible ; but the attorney was held to have his ac- tion against the agent personally for the value of his services, and the measure of his daiifages was held to be the reasonable value of his services as attorney, together with the actual amount of his costs, incurred in the suit against the bank.^ An attorney at law may maintain an action on an implied as- sumpsit for professional services rendered by him, and the rate of compensation is independent of the benefit received. In every transaction in life where there has not been negligence, want of skill, or a stipulation to the contrary, labor is to be re- warded in proportion to the pains taken in it, and not in propor- tion to the results produced by it. The employer takes his chance of that.^ There is no implied guarantee, by an attorney or counsel, whegi retained by the client in the ordinary manner, of ultimate success, or of the soundness of his opinions, or that they will be finally sustained by the court of last resort. The only contract which is implied is that of ordinary skill, atten- tion, and diligence.^ " The services of a lawyer are not to be estimated by the length of his speeches, nor the benefit to his client by the number of them," and a lawyer is entitled to his counsel fee, although he does not argue the case, where argu- ment is unnecessary.* "Where the defendants had retained the plaintiff as their counsel to defend them in certain actions, and executed a note to him for the sum stipulated as his fee. To an action on the note defendants pleaded that the consideration had failed — the plaintiff never having rendered the services for which the note was given as compensation. There was no evi- dence of any services rendered; but it was proved that the ' Wright V. Baldwin, 51 Mo. 269. The court ought not to receive testimony of the value of such professional services as administering an estate. It should pass upon them as an expert. As the services to be thus compensated are ren- dered under the eye of the court, it should fix the value of them on its own responsibility. (Dorsey v. Creds. 5 Martin N. S. 399; Baldwin v. Carleton, 15 La. 395.) 2 Foster v. Jack, 4 Watts, 334. 3 Bowman K. Tallman, 2 Eobt. 385; 27 How. Pr, 212. < Hennen v. Bourgeat, 12 Bob. La. 522. A. & C— 37. 578 LIABILITY OF CLIENT TO ATTORNEY. § 343 parties who had cited the defendants had effected a compromise by which the latter were discharged. The court held that the attorney was entitled to recover on the note, and that his inac- tion might have been the result of a conviction that it would lead to a compromise more advantageous to his clients than any judgment which he could hope to obtain. " It is clear," said Martin, J., " that if he had run the i-isk of a trial and failed, he would have been entitled to the stipulated reward ; and we agree * * that he equally earned it by temporizing and holding himself ready to improve any favorable chance that might present itself." Nor will professional charges be rejected merely for want of success in litigation, unless some clear proof of mismanagement, neglect of duty, or gross ignorance is shown.i The fact that two other counsel were engaged before him in the same case will not deprive the third counsel of his fee, unless the client shows he neglected his duty. But where several suits are made to depend upon the argument of one, the charges should not be multiplied at the full rate, as if there had been separate hearings in each case, but should be confined to such services as were actually rendered.^ 1 Braokett v. Sears, 15 Mich. 244. 2 Brackett v. Sears, 15 Midi. 244. Considerations which may influence professional charges. — In discussing the proper basis for computing the compensation of attorneys and counsel in the absence of any express agreement, the U. S. Circuit Court, in Lombard v. Bayard, (1 Wall. Jr. 207) said: "The law could not well fit a standard wliich would be just in all cases, nor can the court. The services of men of learning, skill, and experience in their professions are not to be rated like those of day laborers. It is a question of great delicacy for the court to be called upon to judge what is a proper compensation for them. The facts of the case from their character cannot be sufflciently brought, or very sufficiently discussed, before the court, nor the compensation tested by any certain rule ; and this last point must generally be submitted to the candor and judgment of the members of a profession eminent among all others for honor and integrity." * * * * » » " Every gentleman of the bar well knows that there cannot be any one rule of charges in the nature of a horizontal tariff for all causes. Often where the par- ties are poor, and the matters in contest small, counsel receive but very inade- quate compensation for their exertion of mind and body ; and for myself, I know that some of the most severe labors of my professional life have been the least well paid. In other cases, where the parties are wealthy, and the sum in con- troversy large, they will receive a tenfold greater compensation for a tithe of the same labor. In some cases the whole sum in dispute would be poor compensa- tion. In others, five per cent, of it will be very liberal. Hence in all oases pro- fessional compensation is guaged not so much by the amount of the labor, as by the amount in controversy, the ability of the party, and the result of the effort." At the time when fees were fixed by statute, the law implied a promise on the §§ 344-6 LIABILITY OF CLIENT TO ATTORNEY. 579 § 344. The Statute of Limitations does not commence to run on the claim of an attorney for services and disbursements until the termination of the proceeding in which they were ren- dered and disbursed, where his employment was to conduct such proceeding to its termination, or until the employment is other- wise terminated. Interest is recoverable from the time the ac- count is rendered to the client.^ Under a general retainer to prosecute an action the attorney may, on perfecting judgment in favor of his client, bring an action immediately to recover his costs, and if he neglects to prosecute within the statutory time after such judgment is perfected, the Statute of Limitations may be pleaded, and will bar the action. As between attorney and client, the amount of costs claimed by the attorney must be liquidated before interest can be allowed.^ § 345. Compensation under special agreement. — It is established by the weight of authority that even where a fee bill is provided by law, an attorney may make a special agree- ment with his client for compensation.^ We have already seen that an extortionate agreement will not be upheld. An assign- ment by the client to his attorney, by way of security for serv- ices actually rendered, will be sustained ; but not a direct sale.* The agreement may secure to the attorney a fee proportionate part of the client to pay his attorney for his services at least the statute rate of compensation. The burden of proving that the attorney undertook to perforin the service for a less rate, or without charge, rested upon the client. Such an agreement, being in the face of a legal conclusion to the contrary, should be made out by evidence equal to a positive stipulation. (Brady v. New York City, 1 Sand. 569.) And the same rule obtains in cases where an attorney is appointed to apt as trustee to the estate of an intestate. 1 Bathgate v. Haskin, 59 N. 533; Davis v. Smith, 48 Vt. 52; Fenno v. English, 22 Ark. 170; Whitehead v. Low, 7 Ex. 691; Hall v. "\^"ood, 9 Gray, 60; Adams v. Bank, 36 N. Y. 255; Mygatt v. Wilcox, 45 N. Y. 306; Bowman v. Tallman, 2 Eobt. 385; 11 Eng. L. & Eq. 587; 4 Binn. 339. The statute commences to run from the recovery of judgment. (Johnson v. Pyles, 19 Miss. 189.) See, also, Hancock v. Pico, 47 Cal. 161. 2 Adams v. Port Plain Bank, 23 How. Pr. 45. 8 Wharton on Agency, sec. 618 ; Wallis v. Loubat, 2 Denio, 607 ; Easton v. Smith, 1 E. D. Smith, 318; Jenkins v. Williams, 2 How. Pr. 261; Lander v. Cald- well, 4 Kan. 339; Major v. Gibson, 1 Pat. & H. 48; Lecatt v. Sallee, 3 Port. 115. But see Merritt v. Lambert, 10 Paige, 352;. Simpson v. Lamb, 7 EI. & B. 84. 4 Anderson v. Eadcliffe, El. B. & E. 805-817; Simpson v. Lamb, 7 El. & B. 84. 580 LIABILITY OF . CLIENT TO ATTORNEY. § 345 to the amount collected, but is invalid if it amounts to a partner- ship by the attorney in the venture of a contested litigation.^ It has been seen that an attorney is entitled to a commission on collections, and that he is to be compensated in proportion not only to the skill and industry applied, but to the responsibil- ity assumed ; and he may lawfully contract, in addition to his retainer, for a percentage on the amount recovered by him. But to become a partner in the results of a speculative suit tends to unduly stimulate litigation, and destroys the distinction between counsel and parties. For these reasons courts have generally refused their aid to enforce contracts by which counsel and cli- ent try their cases on shares.^ If the special agreement is rescinded, or is void for champerty, the attorney may recover on a quantum meruit for his services. But he is limited in such a suit to the valuation he himself at- tached to his services in the special agreement.^ Where, after an attorney's services are ended, his compensa- tion is fixed by mutual agreement of the parties, effect will be given to the contract. In such case, the parties having them- selves established the value of the services, the compensation cannot be withheld on the ground that it is excessive.'' An agreement made after a judgment is recovered, that the attorney shall have part of the judgment when collected, is valid.^ But an agreement between attorney and client, after the former has been employed, by which the original contract is varied, and greater compensation secured to counsel, has been held void;^ and so has an agreement by a solicitor to defend a suit concern- 1 Wylie V. Coxe, 15 How. U. S. 416; Ex parte Piatt, 2 Wall. Jr. 453; Tapley v. Coffin, 12 Gray, 420; Majoru. Gibson, 1 Pat. & H. 48; Fogerty v. Jordan, 2 Eobt. 319; Ogden v. Des Arts, 4 Duer, 275; Benedict v. Stewart, 23 Barb. 420; Bayard V. McLane, 3 Har. (Del.) 139; White v. Roberts, 4 Dana, 172; Evans v. Bell, 6 Dana, 479; Ryan v. Martin, 18 Wis. 672. 2 MerritttJ. Lambert, 10 Paige, 352; Satterleeu. Prazer, 2 Sand. 141; Boardman «. Thompson, 25 Iowa, 487 ; Halloway v. Lowe, 7 Port. 488; Elliott o. McClelland, 17 Ala. 206; Stanton v. Haskins, 1 McAr. 558. As to this distinction in the Ro- man Law, consult Wharton on Agency, sees. 620, 621. 3 Coopwood V. Wallace, 12 Ala. 790; Lewis v. Yale, 4 Pla. 418; Thurston v. Per- cival, 1 Pick. 415; Caldwell v. Shepherd, 6 T. B. Mou. 392; Rust v. Larue, 4 Litt. 416; Quints. Ophir, 4 Nev. 304. See Lecattji. Sallee, 3 Port. 115; Morgana. Rob- erts, 38 111. 65. 4 McElrath v. Dupuy, 2 La. An. 521; Jenkins v. Williams, 2 How. Pr. 261. 6 Floyd t). Goodwin, 8 Yerg. 484. 6 Lecatt r. Snllee, 3 Port. 115. § 346 LIABILITY OF CLIENT TO ATTORNEY. 581 ing land, in consideration of being allowed the rents and profits of the land, pending the suit.^ An agreement made by an attorney with a client to render his professional services in the " courts of the State," in actions tO' test the validity of the client's title to certain real estate, in con- sideration of the conveyance by the client to the attorney of a portion of the land, does not bind the attorney to render his services in an action brought to test the validity of the same title in the Federal Courts for the same State ; and such an agreement being fair and free from fraud, and the land con- veyed by the client a reasonable fee for the services agreed to be rendered, the attorney will not be compelled to reconvey upon payment of a reasonable fee for services rendered, be- cause, by reason of the suit brought in the Federal Court, the client compromised with the opposing parties, and paid ' a large sum of money to acquire opposing claims, and the attorney was not compelled to render the full amount of services rendered.^ § 346. Express contracts between attorney and client. The rule is now almost, if not quite, universal, that an attor- ney is as free to make any contract with his client on the sub- ject of compensation for his services as any other individual is ; and in Pennsylvania, even at the time when the amount of an attorney's or counselor's fees was fixed by statute, where the contract between attorney and client was a specialty contract, such as a bond, note, or other obligation, an action might be maintained thereon, and recovery had, by the lawyer.^ But the remedy of the attorney against the client on all contracts was recognized in the case of Gray v. Breckenridge, 2 Pa. 181, and the right of the lawyer to recover was no longer restricted to specialty contracts, but was extended to all express contracts, and to one class of implied contracts — i. e., an assumi^sit to pay for an attorney's services quantum meruit. " In all cases where the relation of attoruey and client exists, and it is desired to make further professional engagements, it is the duty of the attorney to have the contract (if there be one) clearly and definitely stated and understood, not only in its lan- 1 Merritt v. Lambert, 10 Paige, 352. ^Mahoney v. Bergin, 41 Cal. 423. 3 Mooney v. Lloyd, 5 Serg. & B. 412. 582 LIABILITT OF CLIENT TO ATTORNEY. § 346 guage, but also in its spirit, and legal and practical results." It is necessary "that the means used to obtain the contract be free, not only of fraud, actual or constructive, but also of any other inequitable considei'ation ; that every material circumstance or fact connected vs^ith the execution of the contract, and calculated to inform the client of his rights and responsibilities, be declared to him, without reservation ; that the attorney inform himself of all such facts and circumstances which would reasonably come within the knowledge of, and which would likely prevent the execution of the contract by, the client ; that he does not con- tract for a greater benefit than his services are reasonably worth, with reference to the trouble and difficulties of the particular case, amount involved, either of a pecuniary character, or repu- tation personally, etc. ; that the onus shall devolve on the attor- ney to show that the contract was free from all fraud, undue influence, and exorbitancy of demand ; that the attorney, having performed his part of the contract reasonably, and with due skill and diligence, without regard to the result of the litigation, shall be entitled to recover the amount specified, provided he brings the contract within the foregoing principles. In the absence of a contract, the attorney is entitled to recover on a quantum mer- uit for such labor as he shall have performed." ^ Where, in a special contract between an attorney and his client, the former agrees to defend the latter on a charge of fel- ony for a stipulated fee, and after rendering a part of such services, and being willing and ready to render the rest, is pre^ vented therefrom by the escape of said client from justice, said attorney is entitled, under his contract, to the entire fee agreed upon, and he may prove and recover said demand as set-off in an action of debt brought against him by his client.^ So long, therefore, as it be not oppressive, an attorney is at liberty to make any manner of contract with his client, and to take the client's bond, note, or other obligation, for the amount of his stipulated fee : to take assignments of debt, choses in ac- tion, etc. ; to take conveyances, mortgages, and all manner of securities. The attorney is at liberty to bind himself to render , any manner of service, whether to attend to a particular suit or 1 Plautera' I5ank v. Hornberger, 4 Cold. (Tenn.) 631. 2 Bright V. Taylor, 4 Sneed, (Tenn.) 159. §§ 347-8 LIABILITY OF CLIENT TO ATTORNEY. 583 suits, or to attend generally to his client's legal business for a definite or indefinite term. And the client may lawfully agree to pay his attorney such a recompense for his services as either in amount or kind may be agreeable to the contracting parties, and both parties will be bound by the terms of the contract. Where the contract between the parties is measured by time, such as where an attorney is employed by the year, the contract is binding on both parties for the duration of that time, (unless there is a provision authorizing either party to retract at will or upon notice given) as where a corporation appoints an attorney who accepts the office to manage its legal business for a year, with a stated annual salary, the contract is binding on both par- ties for that time ; and if the attorney is dismissed before the expiration of the year, he may recover his full salary.^ § 347. Assignment of debt. — An assignment of a debt, made with notice to the debtor by the creditor, to his attorney in payment of his fees and disbursements in a litigation regard- ing such debt, is effectual to prevent a set-off against it of a sep- arate and distinct debt due to that debtor from the assignor. And in such case it makes no difference whether the debt as- signed and that claimed to be set-off have gone into judgment or are in suit and undetermined. But this decision," forming an exception to the general principle regarding the assignment of a chose in action, is limited to the assignment of a debt or judg- ment by the creditor to his attorney as security for his services and disbursements in a suit brought upon the debt, or in which the judgment was rendered.^ § 348. Agreement for fixed sum in gross not void. — Assignment of chose in action. — An attorney at law and his client agreed in writing, that the former should have the sum of $1,240, in full of all charges for past services, and the fur- ther sum of 1400, in full satisfaction of all future services in certain suits ; in consideration of which, and for the purpose of securing the payment of the sums above named to the attorney, the client assigned to him his share in his father's estate, then 1 Orphan Asylum v. Miss. Mar, Ins. Co. 8 La. 185. 2 Kipley v. Bull. 19 Conn. 56. 684 LIABILITY OF CLIENT TO ATTORNEY. § 848 under administration ; and it was agreed that the attorney should collect and receive the same, and after deducting the necessary- expenses, pay to himself said sums of f 1,240 and f400, and the residue to the client, and that all future bills of costs in those suits, except for money paid out by the client, should belong to the attorney ; and the attorney agreed, in case he should collect the full sum of $1,640, to pay his client s^lOO. The attorney continued during his life to carry out the agreement according - to its terms, but died without having brought to a conclusion the suits mentioned in the agreement. His executors brought suit to recover $1,240. The court held that the plaintiffs were entitled to recover. " The transfer w^s not an absolute sale in payment and discharge of the debt, but merely as security therefor. * * * "VV^e perceive no ground of objection to the plaintiff's recovering for past services." * * * "The effect of the indenture was not such as to preclude the testator from resorting to the defendant for prior services, if they were not paid from that source." And it seems that no part of the agreement was void for champerty. And so far as the future services were stipulated for, it seems to have been a mere agree- ment to do certain services as a counsellor and attorney at law, for a specified sum. It does not become any more illegal by reason of taking security for the payment of such fees, by driv- ing the attorney a lien upon the demand when collected.^ Where a promissory note, being at the time a chose in ac- tion, was transferred to an attorney to pay and satisfy him for his fees and charges as attorney and counsel during the pendino- of an action against his clients to obtain this and two other notes of a like amount, it was held that the plaintiff in the action acquired a lien on the notes, which was good against all pei-sons chargeable with knowledge, or who had knowledge of such lien. The attorney took the note in question with the risk of the plaintiff being able to establish the fraud in its transfer by his clients. If the plaintiff had failed to establish such fraud, the attorney's title would have been perfect. But if he succeeded, the lien created by the commencement of the action would re- late back to the time when the action was commenced, and overreach the title of the attorney to retain the note.^ 1 Tapley i). Coffin, ,12 Gray, 420. 2 Jeffries v. Cochrane, 47 Barb. 557. § 349 LIABILITY OF CLIENT TO ATTORNEY. 585 § 349. Promissory note for services. — The following cases show that where a promissory note, is given to an attorney for services to be rendered, it must be paid at maturity, even where the payee has not rendered the entire service which was the consideration for the note, at least where the attorney has been in no default. A party who has given a note payable at a particular day, upon the consideration that the payee, an attorney, agreed to perform certain services for him, but without any time being fixed when the services should be performed, cannot, when the payee is in no default, but able, and ready, and willing to com- ply with the contract on his part, defeat a recovery on the note, on the ground that the payee had not yet rendered the entire services contemplated by his agreement. The consideration of the note being the agreement of the payee to perform the serv- ices, and the payment of the money not being made to depend upon the performance as a condition- precedent, and the payee being in no default, the note remains obligatory upon the maker. If the payee of the note had failed or refused to perform the services stipulated, that would be a failure of consideration ; but, until he does some act, or omits to perform some duty to which he was bound and which puts him in default, the consid- eration of the note cannot be said to have failed in any resj^ect.' When an attorney was employed to aid or assist in prosecut- ing an action, for which his client executed a note to him for his fee, and the attorney afterward attended to the suit for about three years, until the client thought it to his interest to put an end to the litigation by compromise without any trial on its merits, it was nevertheless held that the attorney was entitled to recover the whole amount of his fee. The court said the client " was bound in law and morals to pay it, [the fee] because the counsel faithfully performed his part of the contract, and attended to the prosecution of the action from the time he was employed to do so until its termination in the Circuit Court." 2 In a case where a promissory note had been given as a fee to an attorney, to secure his services in the defense of a criminal 1 "Walker v. Clay, 21 Ala. 797. See Cooley v. Dougherty, 5 La. An. 163. 2McClain v. Williams, 8 Yer. (Teun.) 230. 586 LIABILITY OF CLIENT TO ATTOENKY. § 350 suit, and a nolle prosequi having been entered by the prosecu- tion, the maker of the note refused to pay it, on the ground of a failure of the consideration, it was held that the retainer of the attorney was a good consideration for the promise to pay the stipulated amount ; and that, as the attorney did all that could be required of him to be done in the suit, and was not in default in the performance of his part of the contract, he was entitled to recover the stipulated remuneration. ^ But a promissory note given as a fee to an attorney for serv- ices to be rendered in a suit is not collectible, even when it has been assigned to an innocent transferee, if the attorney has failed to attend, either in person, or by some other competent attorney, and properly conduct the suit.^ § 350. Contingent and conditional fees. — Champerty. — We have already had occasion to consider champerty and main- tenance as rendering the attorney amenable to the summary ju- risdiction of the court.^ Agreements to receive certain parts or proportions of the sum or subject-matter of a suit in the event of a recovery, and nothing otherwise, have often been regarded as void and champertous, and contrary to public policy. It seems to be admitted that an attorney may take into considera- tion the general ability of his client to pay, and may consider the pecuniary benefit derived from his service?. A poor man, for instance, who is unable to pay at all, may properly have, and an attorney may properly entertain, a general understanding that the latter is to be liberally compensated in case of success. Against this course there appears to be no objection.'^ But in regard to the agreements first mentioned, it was once a question whether it was not an offense at common law, independently altogether of any statute enactment. Chancellor Kent has ex- pressed himself with considerable heat upon the subject. He says : " The purchase of a law suit by an attorney is champerty in its most odious form, and it ought equally to be condemned on principles of public policy. It would lead to fraud, oppres- sion, and corruption. As a sworn minister of the courts of jus- tice, the attorney ought not to be permitted to avail himself of 1 Pennington «. Nave, 15 Ind. 323. » Ante, sees. 87, 88. 2 Weed V. Bond, 21 Ga. 195. * Sliarswood's Professional Ethics, 150. 350 LIABILITY OF CLIENT TO ATTORNEY. 587 the knowledge he acquires in his professional character to spec- ulate in law suits. The precedent would tend to corrupt the profession, and produce lasting mischief to the community." i « It is clear," says Gibson, C. J., " that if the British Statutes of Champerty were in force here, such fees (contingent fees) would be prohibited by them. But a contract of the sort is not to be encouraged by implication, from a questionable usage, nor established by less than a positive stipulation." 2 In Several cases they have been deprecated, but yet declared to be valid.* As against the client of course, where an attorney in a suit pur- chases the subject thereof, the, client may set aside the sale at his pleasure, unless the attorney show clearly and conclusively that no advantage was taken, that everything was explained to the client, and that the price was fair and reasonable.* It has been held that the purchase by an attorney from his client, pen- dente lite, of the subject-matter of the litigation is absolutely void,5 and that an agreement between an attorney and his client that the former should pay the costs of an action he had brought for his client, if unsuccessful, was also illegal and void, and could not be enforced by his client.^ But in Pennsylvania it was decided that an agreement between counsel and client to pay the former out of the verdict was recognized as an equita- ble assignment, and the court gave effect to it as against an at- taching creditor.' Upon investigating the decisions of the vari- ous States of the Union, it will be found that the authorities are about evenly divided.^ 1 Arden v. Patterson, 5 Johns. Ch. 48. 2 Foster v. Jack, 4 Watts, 338, 339. 3 Ex parte Plitt, 2 Wall. Jr. 452. ■•Valentine v. Stewart, 15 Cal. 387; Gray v. Emmons, 7 Mich. 533; Mills «. Mills, 26 Conn. 213; Ford v. Harrington, Ifi N. Y. 285; Jennings v. McConnell, 17 111. 148'; Lewis v. J. A. 4 Edw. Ch. 599; Evans v. Ellis, 5 Denio, 640. 6 West (I. Raymond, 21 Ind. 305. « Low V. Hutchinson, 37 Me. 196. ' Patten v. Wilson, 10 Casey, 299. 8 It is substantially held in the following cases that champerty is an offense at common law, and that contracts for contingent fees constitute champerty, and are void on that ground, and also as against public policy, viz: Rust v. Larue, 4 Litt. 411; Caldwell's Admrs. v. Shepherd's Heirs, 6 Mon. 391; Thurston v. Perci- val, 1 Picli:. 415; Arden v. Patterson, 5 Johns. Ch. 48; Bleakley's Case, 5 Paige, 311; Wallis v. Loubert, 2 Denio, 607; Backus v. Byron, 4 Mich. 535; Elliott v. •McClelland, 17 Ala. 206. To the contrary are Thallhimer v. Brinkerhoff, 3 Cowen, 643; Bainsey's Devisees v. Trent, 10 Mon. B. 336; Bayard v. McLane, 3 Harr. ?16; Lytle V. State, 17 Ark. 608; New Kirk v. Cone, 18 111. 449; Major v. Gibson, 1 Pat. & H. 48; Wright v. Meek, 3 Iowa, 472, 588 LIABILITY or CLIENT TO ATTORNEY. § 350 In some States the matter is regulated by statute. In New York, by the Revised Statutes (2 Rev. Sts. 386) it was made an offense, punishable by fine or imprisonment, and removal from the bar, for any attorney, counselor, or solicitor, directly or indirectly to buy, or be in any manner interested in buying, or to advance, or procure money to be advanced, upon anything in action, with the intent, or for the purpose of bringing any suit thereon. The Code of Procedure, however, did not seem to after- ward adopt this provision.^ In Kentucky there seems to have been a statute which provided that any one not a party, receiv- ing as compensation for services in prosecuting or defending a . suit the whole or part of the subject-matter in suit, was guilty of champerty, and it has been held that this statute extended to at- torneys.^ In England contingent fees are held to be within the statutes of champerty and maintenance.^ An agreement to pay the attorney a percentage on the gross amount of property recov- ered for the client, in addition to his costs, has been held void in England, on the ground that the stipulation was contrary to the policy of the law, and that the solicitor must refund the amount received by him for commission, though included in a settled account.* An agreement to pay one-half of the sum recovered, though not illegal in France, where it was entered into, has been held invalid in England, where the debt was to be recovered, as amounting to champerty ; and the attorney was compelled to hand over the amount recovered to his client, and was only allowed to retain his taxed costs.^ According to a case in one of the Year Books, it appears to have been anciently considered illegal for an attorney to lay out his own money for the maintenance of his client's suit.^ But attorneys and solicitors have long been accustomed in ■ England to make the necessary advances for fees and other necessary 1 Code Civ. Proc. sec. 258; Satterlee v. Frazer, 2 Sand. 142; Benedict v. Stuar», 23 Barb. i20; Ogden v. Des Arts, 4 Dner, 275; Sedgwick v. Stanton, i Kern. 289. 2 Davis V. Sliarron, 15 Mon. G4. 8 Senrice v. Parker, Eep. Temp. Fincli, 75. 4 Pince V. Beattie, 32 Law J. Cli. 734. 6 Grell V. Levy, 16 Com. B. N. S. 73; 10 Jur. N. S. 210; 12 Week. E. 378; 9 L. T. N. S. 721. See Collins v. Brook, 1 Fost. & F. 407; 4 Hurl, & N. 270; 28 Law J. Ex. 143; Morgan v. Taylor, 5 Com. B. N. S. 653; 5 Jur. N. S. 791; 28 Law J. Com. P. 178. 6 11 Hen. VI, fol. 11; Vin. Abr. tit. Maintenance; Com. Dig. tit. Maintenance § 350 LIABILITY OF CLIENT TO ATTORNEY. 589 expenses of suit, with a view to future repayment, and the practice has been considered free from objection. ^ The attorney was often employed not simply to pay money, but to conduct the cause, and ascertain whether particular payments were necessary or not.^ Still, in England, it has been held to be champerty for an attorney to agree to be paid in gross when the suit is recovered;^ and also that an attorney ought not, in any case, to carry on a cause at his own expense, with a prom- ise never to expect a repayment.* Courts have often refused their sanction to agreements on the part of attorneys or solicitors to indemnify clients against the expenses of proceedings taken in their name as to charge costs, as taxed between party and party, in successful cases, and sim- ply costs out of pocket in unsuccessful ones.^ The attorney, it appears, is precluded in such cases from suing for the fees he would in ordinary cases be entitled to.® The client appears to be at liberty to refuse to perform any condition annexed to such agreements as that the attorney shall have a share in the prop- erty recovered.^ The English statutes as to maintenance have not always been considered in force in the United States,^ even as part of the common law. In many portions of the United States, contingent or condi- tional fees are usual, and have been frequently sustained by the courts. It is a matter of considerable practical importance to the practitioner, and we may be pardoned for dwelling upon the 12 Inst. 484, 564; 1 Hawk. P. C. 254, sec. 27. 2 Lewis V. Samuel, 8 Q. B. 485. 3 Box V. Barnaby, Hob. 117; Com. Dig. Att'y, B. 14; Guy v. Gower, March, 27.3; Christy v. Douglas, Wright, 485. *1 Hawk. P. 0. chap. 27, sees. 29, 30; Brash v. Walton, 8 Johns. 298. SMcEgan v. Cochrane, 10 L. T. 37. STwaites v. Mackerson, 3 Car. & P. 341; S. C. Moody & M. 199; Jones v. Nan- ney 1 Mees. & W. 333; Jones v. Read, 5 Dowl. 216; Ashford v. Price, 3 Stark. 185;' Lewis v. Samuel, 8 Q. B. 218; S. C. Jur. 429; Turner v. Tennant, 1 New Prac. 69, 424; Saterlee v. Frazer, 2 Sandf. 141. . 'Saunderson v. Glass, 2 Atk. 298; Wood v. Douries, 18 Ves. 120; Wells v. Middleton, 4 Brown Pari. C. 26; Bellew v. Russell, 1 Ball & B. 97; 2 Inst. 208, 484 564- Stats. Westm. i, chap. 25; Westm. iii, chap. 29; 28 Bdw. I, chap. 11. See' Flight V. Leman, 4 Q. B. 883; Pechell v. Watson, 8 Mees. & W. 691. See, generally, Ex parte Yeatman, 1 Dowl. 304; 1 Har. & W. 510; In re Stretton, 14 Mees. & W. 806; 3 Dowl. & L. 278; 15 L. T. Exch. 16; Hutley v. Hutley, Law R. 8Q. B. 112. 8 Richardson v. Rowland, 40 Conn. 565; Whart. C. Law, sec. 2804. 590 LIABILITY OF CLIENT TO ATTORNEY. § 351 subject at considerable length, in the endeavor to state as fully as may be, the various distinctions which have been taken ; re- marking once for all that the locality is an important element to be considered, as the rule varies in different States, and the gen- eral, common-law prohibition against champerty has received a free or strict construction, as the leanings of the courts or the provisions of local statutes have suggested or demanded. Contingent or conditional fees are of two kinds : 1. Where the attorney stipulates to receive, as compensation for his serv- ices, part of the thing or claim to be recovei-ed in the action ; 2. Where, in case of success in the suit, the attorney's compen- sation is to be increased, either in the ratio of the value of the amount recovered, or by a sum certain. We have seen that in many of the States the former kind of agreement for a condi- tional fee is champertous and void ; but in neither case, except where statutes have abolished all restrictions on the contract between attorney and client, is the practice of bargaining for a contingent fee much favored by the courts. Contingent or con- ditional fees, when legal, are governed generally by the laws relating to express contract between attorney and client. § 351. Contracts held champertous. — An agreement by which an attorney is to receive for his services in recovering a claim a part of the claim or thing to be recovered, is cham- pertous and void in Indiana.^ In Massachusetts, an attorney was employed to aid in the recovery of a sum of money, for which he was to receive ten per cent, on the sum recovered. This contract was held void, as being champertous at common law.2 So in Lathrop v. The Amherst Bank, 9 Met. 481, it was held that an agreement between A and B, that B shall prosecute and manage A's suit at law, and that he shall receive for his services a certain per cent, on the amount that shall be recov- ered, and that if he doe.s not recover, A shall pay him no more than his actual expenses, amounts to champerty ; and is so far illegal and void, that B, after obtaining judgment for A, cannot maintain an action on the agreement. The court say : " The 1 Scobey «. Boss, 13 Ind. 117. And see HoUowav v. Lowe, 7 Port. 488- 1 ^la 246. 2 Thurston v. Percival, 1 Pick. 415. § 351 LIABILITY or CLIENT TO ATTORNEY. 591 contract on which the plaintiff seeks to recover was illegal ; being in violation of the principles of law in reference to mainte- nance and champerty. Such agreement for a proportionate share of the fruits of litigation as a consideration for services ren- dered in conducting and prosecuting with success a suit at law, where the party has no interest, legal or equitable, and has no claim or expectancy, even remotely contingent, has been deemed contrary to public policy, and proscribed by statutes and the common law. The statutes 3rd and 13th Edward I related to officers of the king, but the provisions were further extended and made applicable to other persons by statute 28 Edward I." The same was the rule in New York. Thus, in Merrit v. Lam- bert, 10 Paige, 352, it was held that an attorney, solicitor, or counsel could not, previous to a determination of the suit, con- tract with his client for a part of the demand or subject-matter in litigation, as a compensation for his services. This case, sub nomine Wallis v. Loubat, was affirmed in 2 Denio, 607. So also in Satterlee v. Frazier, 2 Sand. S. C. 141, it was held that an agreement, by a party having a demand against an estate, by which he employed an attorney to collect it, and was to pay him one-half of the claim for his services in collecting it, or pro- curing it to be paid, was champertous and void. The New York Code of Procedure has changed the law in this respect, so that now parties can make such bargains with their attorneys as they please. In two instances in Kentucky, a conditional or contingent fee was held not to be champertous. luj Evans v. Bell, 6 Dana, 479, Bell had brought an action for slander, and had employed Evans as his attorney to conduct the suit, and agreed to pay him for his services a sum equal to^ one-tenth of the amount of damages which might be recovered. jThis was held to be valid ; but the decision was placed upon the ground that the sum to be paid was not to be out of the damages to be recovered. The court say : " The covenant is;not champertous from anything apparent on its face. It does not import an un- dertaking to give any part or parcel of the thing in suit or of the damages to be recovered ; but is an obligation'to pay a con- tingent fee made dependent on a recovery, and^to^^be regulated in amount by the amount recovered. It is evident^that had the agreement been to pay one-tenth of the sum to_^be'recovered, it 592 LIABILITY OF CLIENT TO ATTORNEY. § 351 would have been held champertous and void." In the case of Eamsey v. Trent, 10 B. Mon. 336, it was held that a contract to pay counsel a fee equal to one-fourth of the value of the land that might be recovered, less the costs of the suit, and to wait until the land should be sold, was not champertous. This was placed upon the ground that the agreement was not to give " j^art or profit out of the thing in contest." " The reference to one-fourth of the value of the land is only for the purpose of measuring or ascertaining the fee." In Indiana, a contingent fee is champer- tous. So where A, by power of attorney, constituted B, a law- yer, his agent to secure and collect his interest in an estate, and as a part of the same transaction B agreed to prosecute the claim of A for one-half of whatever of said estate he might ob- tain ; it being apparent that litigation in court was contemplated ioY the recovery of said claim, the contract was held to be cham- pertous and void.^ And where an attorney had made a void and champertous contract with the plaintiff for compensation out of the subject in litigation, the court held that the contract being void, the attorney had no lien upon the judgment recov- ered for compensation, to any extent whatever.^ In Ohio, a contract with an attorney that he shall, prosecute suits for the recovery of property, to share in the property if re- covered, and that no compromise shall be made except with his assent, was held illegal and roid.^ In the course of an opinion, Burnett, J., said : " In this State we have no general statute pro- hibiting or punishing champerty, and the common law, in rela- tion to crimes and misdemeanors, is not in force. But although this may be the case, it by no means follows that they may be lawfully and innocently practised, or that the aid of the State tribunals may be had to sanction and enforce them. The con- tract between these parties is against public justice, and such engagements have always been considered as injurious to the peace and happiness of the community. The nature and moral tendency of actions cannot be affected by the manner in which the law treats them. If they be in their nature injurious, they 1 Lafferty v. Jelley, 22 Ind. 471. Such a fee is held champertous in Michigan. Backus V. Byron, 4 Mich. 435. See the opinion of Mr. Justice Green in this case. 2 Davis V. Sharron, 16 B.Mon. 67. 3 Key V. Vattier, 1 Ohio, 132. § 361 LIABILITY OF CLIENT TO ATTORNEY. ■ 593 must be considered as offenses, whether the State has thought it necessary to punish them or not. * * * In guch cases as the one now before us, they might naturally believe that public opinion, aided by the want of a legal remedy to enforce contracts, would afford all the remedy required. However this may be, it is be- lieved that, by omitting to provide a punishment in all cases of champerty, they neither intended to afford them their sanction nor to open their courts for their protection and encouragement." But where, by the terms of an agreement between attorney and client, the compensation of the former was made " whollv contingent upon successfully pursuing the claim," that it was to be made commensurate therewith, liberal, and adequate ; and if unsuccessful, he was to receive nothing for his skill, toil, and expenditure of time and money; and after the services were completed, the compensation was fixed by the mutual agreement of the parties, and the sum agreed upon was secured by a mort- gage, it was held that the parties themselves having established the value of the services, the compensation could not be with- held on the ground of exorbitance.^ 1 McBlraith v. Dupuy, 2 La. An. 520; Walker v. Outhtert & Stanley, 10 Ala. 213, to the same effect. Where a client gave a note to his attorney for services to be rendered in a cer- tain suit, and at the same time executed an instrument by which he agreed to allow him one-half the damages that might be recovered, it was held that the note and agreement formed but one contract, and that both were champertous and void. fDumas v. Smith, 17 Ala. 305. ) The same point was ruled in Elliot v. McClelland, Ibid. 206. It is doubtful whether a contract by a client to convey to his attorney a cer- tain portion of a tract of land, the pre-emption right to which is contested, when he shall obtain title, in consideration that the attorney shall render all necessary services to procure the allowance of his client's claim tliereto, is not champert- ous. (Martin v. Veeder, 20 Wis, 466.) Compare with Brent v. Beeves, 3 La. 10. An attorney agreed with a father to institute proceedings for the division and sale of land held by the father and his daughter in common, and the father agreed to pay for such services $500 when the land should be sold and the pur- chase money become due ; or the usual fee in case' the attorney should fail to procure the division. The father died after an order for the sale had been en- tered by the court, but before the sale had taken place ; and the guardian of the daughter had the ease dismissed. Held, that the attorney was only entitled to the usual fee for his services, on the ground that where the law casts a duty upon a party, the performance shall be excused by the act of God; but where a party by his own contract engages to do an act, it is deemed his own fault that he did not exempt himself from responsibility in certain events. (Bunn v. Prather, 21 111.219.) A. & C— 38. 594 LIABILITY OF CLIENT TO ATTORNEY. § 352 § 352. Contracts held not champertous. — Although there was no statute in reference to champerty in New Hampshire, in 1862, and the common law prevailed there, it has been determined that an attorney may render services and advance money in carry- ing on a lawsuit for a man without property, upon an agreement that he shall be first paid from the funds recovered ; and this is not either maintenance or champerty. The court said : " We are not prepared to say that the law relative to maintenance and champerty is not part of our law. The evils against which those laws were designed to guard are as likely to spring up here as elsewhere, if those safeguards were removed. But we think that the law might be administered in a very different spirit here at this day from what it is supposed to have been in a different state of society. So long as the law gives counte- nance and encouragement to the employment of attorneys and counsel to aid suitors in the prosecution and defense of their supposed rights, it cannot be deemed maintenance for profes- sional men to render their services to those who need them for the usual and customary compensation. Nor is it material whether the party is in good credit and able to pay for those services as the case proceeds, or whether the counsel has to rely for his compensation on the success of a cause he believes to be well founded. It is usual, and in many cases unavoidable, that the expenses incident to a controversy are paid by the attorney in the cause. Such advances are constantly recovered in actions for costs, and there can be no pretense that the payment of such proper and needful expenses in good faith constitutes mainte- nance, whether they are expected to be paid at once, or from the proceeds of the cause." ^ An agreement between an attorney and client, that the former shall investigate the records of titles to real estate, and decide between conflicting titles as to which is the best, acquire such titles and bring suit for the recovery of them, and when success- ful, that the profits shall be divided between attorney and cli- ent, the former furnishing skilled labor, the latter capital for the purchase of the titles, etc., is not tainted with crime or ao-ainst any statute of the State of Illinois. Nor are contingent fees to 1 Christie v. Sawyer, 44 N. H. 303; Sliapley v. Bellows, i Ibid. 355. § 352 LIABILITY OP CLIENT TO ATTORNEY. 695 attorneys in that State against law and public policy. " We are aware of no law or public policy in this State," say the court, " which would deprive a person, claiming a right, from contracting to pay for legal services in vindicating it a stipulated portion of the thing or of the value of the thing when recovered, dependent solely upon such recovery, instead of paying or" con- tracting to pay, absolutely, a sum certain." Maintenance, as defined and punished in Illinois, by statute, has abolished the common-law offenses of champerty, barratry, etc., and now con- sists in officiously intermeddling in a suit and furnishing means for its prosecution, with a view to promote litigation.'^ In California, a contract entered into betwen a client and an attorney, in which the attorney undertakes to resist a motion for a new trial, etc., and to receive for his services a portion of the land, has been held not contra honos mores, if no concealment or improper practices were to be used, or were in fact used by the attorney in performing the contract on his part. A court of equity will not, for the want 'of mutuality, refuse to enforce the specific performance of a contract between an attorney and client, by which the attorney undertakes to give such profes- sional services on such conditions. Nor if, in such a case, the attorney, after performing some service, is absent when the case is called in court, and the client employs another attorney to assist in the matter, and the client waives a full performance of the contract, if he still continues to recognize the former as attorney and avails himself of his service. If an attorney asks the specific performance of a contract to convey to him land for his professional services, and the client has employed other counsel to assist, in the absence of the attorney, equity will not allow the client compensation for the services of the counsel, and the amount of the compensation is the value of the services rendered.^ i Newkirk v. Cone, 17 111. 449. 2 Ballard v. Garr, 48 Cal. 74. A promise of a conditional fee to an attorney at law for his services in a case, to be paid in tlie event of a decision in favor of the obligors, though made after he had been retained in the case, is legal and for a sufficient consideration, and the amount maybe recovered if the condition be fulfilled. (Henry Clay «. Ballard, 9 Bob. La. 308.) " Whether it was originally wise to invest the due compensation of counsel with the incidents of legal demand, and whether the dignity, and with it the 596 LIABILITY OF CLIENT TO ATTORNEY. § 353 § 353. Maintenance and barratry. — C, being about to leave the State, claimed to have a demand against M, which he wished to have prosecuted. It was thereon agreed between the plaintiff and defendant and C, that the latter should assign his claim to the plaintiff, and that the defendant should prosecute the demand as attorney, in the plaintiff's name, but the plaintiff was to have no interest in the moneys recovered. The defend- ant agreed to pay the plaintiff f 50, whenever the action was determined, together with his necessary expenses in attending court. His compensation for the time spent in attending court was to be included in the $50, and he was to be saved harmless from all costs and expenses of the litigation. The court held that although this agreement came exactly within the general definition of maintenance, so far as the plaintiff was concerned, yet that it did not fall within the terms of the revised statutes which abolished all maintenance, (except taking a conveyance of lands in suit, or selling pretended titles, or conspiracies falsely to show or maintain suits) and being in no respect contrary to any existing law, it could be enforced. , It was held also that the plaintiff, when he entered into the agreement with the de- fendant, was not guilty of doing an illegal act ; and it was not usefulness, of the profession might not have been better secured by leaving its members to a merely honorary recourse, has divided the opinions of intelligent and honest thinkers. But the question is now, and has long been, merely a speculative one in Pennsylvania, and our courts have either to remodel the law, or to enforce it as it stands, by admitting the lawyer to sue for his quantum meruit. " So, too, the practice which has obtained to a considerable extent, of stipulat- ing beforehand for professional fees, contingent on the result of the litigation. It is not a practice to be generally commended, exposing honorable men, not unf requently, to misapprehension and illiberal remark, and giving the apparent sanction of their example to conduct which they would be among the foremost to reprehend. Such contracts may sometimes be necessary in a commuuity such as that of Pennsylvania has been, and perhaps, as it is yet; and where they have been made in abundant good faith, uberrima flde, without suppres- sion or reserve of fact, or exaggeration of apprehended difficulties, or undue influence in any sort of degree ; and -when the compensation bargained for is absolutely just and fair, so that the transaction is characterized throughout by ' all good fidelity to the client,' the court will hold such contracts to be valid. But it is unnecessary to say, that such contracts as they can scarcely be ex- cepted from the general rule, which denounces as suspicious the dealings of fidu- ciaries with those under their protection, and must undergo the most exact and jealous scrutiny before they can expect the judicial ratification." (Ex parte Plitt, 2 Wall. Jr. C. C. 279, Per Kane, J.) §§ 354-5 LIABILITY OF CLIENT TO ATTORNEY. 697 barratry on his part, because it was but a single instance, and that offense consists in the habit or practice of stirring up strife. And further, that the case did not fall within the provisions of the revised statutes forbidding attorneys, etc., buying rights in action to prosecute, or lending money to procure suits. ■• § 354. Contingent fee not within the Statute of Frauds. There is no principle of law that prevents a creditor, upon a good consideration, from making the jjayment of his claim de- pendent upon a contingency ; nor is there any statute that re- quires an agreement to that effect to be in writing. An attorney, therefore, can make a valid agreement with his client, by which his right to recover fees already due for his services is made contingent upon his success in the action. Such an agreement has a valid consideration, consisting both of prospective advan- tage to himself, and of hazard and expense to his client. It is not, in any sense, a " promise to answer for the debt, default, or miscarriage of another," and is not within the provisions of the Statute of Frauds.^ § 355. Right to contingent fee as against attaching creditor of client. — An agreement between attorney and client that the former should have |100 for his services " out of the verdict " in and for unliquidated damages arising from a tort, operates as an assignment to that extent of the sum recovered, and is good against an attaching creditor of the client. It may be observed that the court in this case declared that the attor- ney had no lien on the fund recovered, but that the agreement operated as an assignment. It is true that a claim for unliquidated damages in an action sounding in tort is not capable of assignment before verdict. But it is true only in respect to the rights of third parties. As between attorney and cbent, an assignment, or agreement to as- sign the whole or part of a future verdict, would be binding, arid, being founded on sufficient consideration, would be en- forced. " Such agreements between counsel and client are com- mon ; more frequent, indeed, than they ought to be. They have more than once attracted the animadversion of this court ; but 1 Voorhees v. Dorr, 51 Barb. 580. ^ pitch v. Gardenier, 2 Keyes, 516. 598 LIABILITY OF CLIENT TO ATTORNEY. §§ 356-9 they bind the parties, and the attaching creditor of one of the- parties succeeds to no higher rights than he possessed." ^ § 356. Contingent fee — Contract of indemnity. — A con- tract by an attorney to save his client harmless from all respon- sibility in a suit pending against him or to refund his fee, if valid, extends only to such liabilities as the law v\rould recognize and enforce ; and if the client suffers a judgment to be rendered- against him in favor of another attorney whom he had never employed for professional services in the same suit, he cannot resort to his contract of indemnity.^ § 357. Right to compensation — Contract — Merger. — A simple contract that an attorney should have one moiety in fee of the lands he should recover for his client, is merged in a bond subsequently executed, that the attorney should, on a cer- tain contingency happening, reconvey the vs^hole of the premises to his client.^ § 358. Contingent fee — Death of Client. — Where a con- tract was made with an attorney for the prosecution of a claim for a stipulated proportion of the amount recovered, and the attorney rendered certain services under such contract, the death of the client did not dissolve the contract, but the compensation remained a lien upon the money when recovered.* § 359. Contingent fee — Commissions for collecting. — An attorney may in some localities stipulate for a commission or percentage on collections to be made, and is entitled to such fees therefor as his client may agree to pay him.^ And where an attorney received notes from an agent, who agreed to pay him one-fourth of the amount collected, and the principal settled with the attorney giving a contract which sub- stantially agreed to comply with the agent's terms ; the attorney was allowed to recover for the service actually rendered at the 1 Patten r. Wilson, 34 Pa. 299. 2 Lindsey v, Jones, 23 Ala. 835. 8 Mott (!. Harrington, 12 Vt. 199. •* Wylie V. Coxe, 15 How. 415. 6 Flower v. O'Connor, 7 La. E. 207; Butter worth r. Kinsey, 14 Tex. 500. §§ 360-2 LIABILITY or CLIENT TO ATTORNEY. 599 rate of twenty-five per cent, on the amount collected, that being the rate of agreement with the agent.i When an attorney's fee is contingent upon his success in col- lecting money for his client, the fee not being demandable until the money is collected, the Statute of Limitations begins to run not from the date of the judgment obtained, but from the time the money is finally paid.^ § 360. Right to compensation — How far protected against fraudulent assignment of chose in action. — An at- torney's claim to compensation out of a judgment rendered in a suit in which he has been employed, will be protected against a fraudulent assignment of the chose in action, if the assignee has notice of the attorney's claim. And if, while the suit is yet in progress, the assignee should compromise the claim and receive the money, he will be held liable for the attorney's bill.^ If an attorney's fee is made contingent on success, and his client settles the suit without the attorney's consent, the attor- ney can recover what his services are worth on a quantum meruit.^ § 361. Contingent fee — Compromise of suit— Measure of damages. — Where a client conveyed to an attorney, as his fee for services to be rendered, a chattel, her title to which she declined to warrant, and afterward she compromised the suit, and the chattel was included in the compromise ; the proper criterion of damages (fee) due to her attorney was held to be the actual value of her right, title, and interest in the chattel at the time of the conveyance. If she had but a naked legal title, the damages should have been but nominal.^ § 362. Compensation of substitutes. — It has been said that where an attorney who has been employed to render pro- fessional services procures another to represent him and perform them for hira, and who does so with the consent of his client ; 1 Butterwortli v. Kinsey, supra. 2 Movgan v. Brown, 12 La. An. 1.59. 3 Christie v. Sawyer, 4i N. H. 298. « Quint V. Ophir, 4 Nev. 305. 5 Whitehead v. Ducker, 11 Smedes & M. 98. ■« 600 LIABILITY OF CLIENT TO ATTORNEY. § 363 in that case the services in contemplation of law are rendered »by the attorney who was employed to perform them, though actually performed by another, upon the principle of the maxim, qui facit per alium facit per se, and he may recover on the con- . tract the price stipulated for their performance. And the client having accepted the services of the representative in lieu of those of the attorney represented, cannot afterward object that they were not performed by the latter in person. It was upon this principle that the case of Allcorn v. Butler, 9 Tex. 56, was decided. " It is not upon the supposed right which an attorney has to substitute another in his place without the consent of his client; for no such right is recognized. The contract being personal in its character, must be performed by the attorney who has been employed, and has undertaken to perform it in person, unless the client consents to its performance by another."^ But if he does so consent, and accepts performance by another, it would be to sanction a breach of honesty and good faith to permit him afterward to raise the objection which he did not make at the time. In such a case the attorney whose services were contracted for is entitled to recover on the contract as having performed it on the principle of the maxim before quoted.^ Where an attorney is employed by a party, the law implies a contract between them ; and before a new partner can be made a party to such contract, there must be some agreement or un- derstanding to place him in a position which will enable him to make a claim against the client, for services in the suit. In the absence of proof of such an agreement, or the substitution of the firm as the attorneys or counsel of the party, the relation of at- torney and client does not exist between the firm apd such party with the assent of the latter, and consequently the attorney originally employed may recover for his services in the suit, in an action brought by him alone. ^ § 363. Taking new security pending relation. — A court of equity will not enforce in favor of a solicitor a security taken 1 Morgan v. Roberts, 38 111. 65. 2 Ratcliff V. Baird, 14 Tex. 44; AUoorn v. Butler, 9 Ibid. 56. See Feuuo v. Eu- gliali, 22 Ark. 170. s Davis V. Peck, 64 Barb. 423. § 364 LIABILITY OF CLIENT TO ATTORNEY. 601 from his client pending a suit for anything beyond the sum actually due the solicitor. " Transactions between solicitor and" client are always scrutinized with a jealous eye, arid a court of equity will not suffer a solicitor to take a security from his client pending a suit for a single shilling, by way of gratuity, however reasonable this might be in many cases." ^ In the case of Wood V. Dounes, 13 Ves. 120, it was held that beneficial contracts and conveyances, obtained by an attorney from his client during their relation as such, and connected with the subject of the suit, should stand as a security only for what was actually due. So in Hylton v. Hylton, 2 Ves. Sr. 547, 259, it is laid down as clear law that no attorney can take anything from his client pending the suit, save his demand.^ § 364. Of the right of an attorney to make new con- tracts -with the client for compensation after retainer. The question whether an attorney, during the relation between his client and himself, can make with his client a binding con- tract to secure to himself greater compensation for his services than was agreed on when the relation commenced, has been decided in the negative. The question has often been determ- ined in England. There it is a settled doctrine of equity that an attorney cannot, while the business is unfinished in which he had been employed, receive any gift from his client, or bind his client in any mode to make him greater compensation for his services than he would have a right to demand if no contract should be made during the relation. If an attorney accept a gift from one thus connected with him, it may be recovered in the court of chancery by the donor or his creditors, should it be necessary to them to assert a right to it to satisfy their demands. If a bond or any security for a greater compensation be taken from a client by his attorney, it will, upon application to a court of equity, be either set aside, or allowed only to stand as security for the sum to which the attorney would have been entitled if no such security had been given. In some cases, the prohibition comprehends all dealings between attorneys and their clients ; in others it is confined to the particular business which was the 1 Saunderson v. Glass, 2 Atk. 2£7. 2 Mott v. Harrington, 12 Vt. 1P9. 602 LIABILITY OF CLIENT TO ATTOBNEy. § 365 inducement to form the relation, and an attorney is allowed to enter into contracts with his client upon any matter which is not the object of his concern as attorney.^ But after the relation has ceased, attorneys have a right to take what may be given them, or paid, as compensation. Their employment in one suit does not deprive them, while it is pending, of their right to make a contract for compensation for their services in another, or for any other professional business with the same client.^ § 365. Withdrawal from case. — An attorney who with- draws from a case with the consent of his client does not there- by lose his right to compensation for the services already ren- dered, unless, at the time of his withdrawal, he waives or abandons his claim to compensation.^ And if an attorney, who had been employed at an annual salary, and has resigned his appointment, continues, with the approbation of his former cli- ents, his attention to the suits which originated during his term of office, and his services are shown to have been useful, he may recover compensation therefor.* When attorneys who are employed under a special contract to prosecute a suit abandon the cause before its termination, they are thereby deprived of any claim under the contract, and must be left to recover such fees and compensation as they are reason- ably entitled to, on the basis of a quantum meruit, and by aban- doning the contract they will lose, besides, whatever lien upon the proceeds of the suit they might have had under its provis- ions. And when a party engages the services of a particular lawyer, or of an association of lawyers, he is entitled to the services of every one of them, and if one abandons the retainer with the assent of the others, express or implied, or they attempt to supply his place with another attorney of equal or superior qualifications, it will be no performance of the contract.^ The liability of an attorney and his incapacity to support an action for costs are limited by circumstances. Where, in an ac- tion by an attorney for his bill of costs for conducting a chancery 1 Lecatt V. Sallee, 3 Port. 115. 2 Lecatt r. Sallee, 3 Port. 11.5. 8 Coopwood V. ^^'allace, 12 Ala. 790. 4 Carter v. New Orleans, etc., 5 Kob. (La.) 3.3. 5 Morgan v. Roberts, 38 111. 65. § 366 LIABILITY or CLIENT TO ATTORNEY. 603 suit, it appeared that the attorney had conducted the cause up to the time of obtaining the master's report, and had made re- peated but ineffectual attempts to procure money from his client to carry on the proceedings, Tenterden, C. J., said: "It was not to be expected that a solicitor should continue to conduct a cause for an indefinite length of time, after repeated applications for money without effect." i But in another case it was said by Lord Eldon that a solicitor going a certain length in a cause cannot leave it there, but must go on.^ § 366. Dismissal from case — Effect on compensation. — Where an attorney is employed for a stipulated fee to prosecute a suit to final judgment, and is afterward dismissed by his client without any fault on his own part, he is entitled to recover for the services already rendered, and the court seemed to have some doubt whether he would not be entitled to recover the whole amount stipulated to be paid. " The relation of attorney and client is a confidential and peculiar relation. It is incom- patible with that relation for the attorney to accept the employ- ment or the confidence of both parties. And after accepting an employment, and enjoying the confidence of one of them, though afterward discharged by his client without cause, the attorney cannot in general with propriety accept an employment by the opposite party in the same case. This consideration would seem to afford a good reason why such contracts should be excepted from the rule to which we have adverted," (that a readiness or tender to perform is not equivalent to performance) and the at- torney be entitled to recover the full amount of the fee for which he had contracted from his client who had wroitgfully prevented him from performing his contract.^ And so also in another case it was decided that if an attorney was dis- missed without cause, and kept himself ready to fulfill his part of the contract by a continuing tender of his services, he could recover the whole amount stipulated to be paid. As where an attorney was employed to defend a party upon a criminal charge upon a fee to be paid after such services were rendered ; and 1 Rowson V. Earle; sittings in London, Oct. 28th, 1829. 2 14 Ves. 196; Mordecait). Solomon, Sayers, 172. 3 Myers v. Croclcett, 14 Tex. 259. 604 LIABILITY OF CLIENT TO ATTORNEY. § 367 upon tendering such services was told by his client that he would no longer need his services, as other counsel were retained ; whereupon the attorney informed him he was ready to comply with his contract, and would make him do so, but afterward volunteered in the prosecution, and rendered his professional services against the defendant. The court held that the attor- ney could hold the client to his contract by a continuing tender of his services and a readiness to perform his part of the con- tract until the case was ended ; but if, instead of so doing, the attorney entered upon the other side of the case, this would be an abandonment of the contract and a release of the client from its obligation, and the attorney could recover no fee on the con- tract. To entitle him to a fee, the attorney must have kept himself in readiness to serve his client. This consequence is not avoided by the tender of the attor- ney's services at the time he was discharged, for the client might have changed his mind as his case progressed, and have called him in to his assistance, as he would have the right to do if the attorney still insisted on his contract.-' § 367. Compensation. — Change of attorney. — Where an application is made by a party in an action to change his attor- ney, and the court orders a reference to ascertain the amount due to the attorney from his client for professional services, and, upon the coming in of the referee's report fixing the amount to be paid, the client withdraws his application for a change, the court has no power, summarily to order such amount paid by the client to the attorney, by proceedings in the nature of an attachment for contempt. Although good faith would seem to require that the party, after resorting to the aid of the court for a change of attorney, should pay the amount reported due to the attorney, the court can only regard it as a debt for profes- sional services liquidated by the referee, under the order of the court, leaving the attorney, upon withdrawal of the application, to collect the amount of such indebtedness by action, or to take such other proceedings as he shall be advised. If the cli- ent had not withdrawn his application for a change, the court 1 Cantrell », Chirm, 5 Sneed, 116. § 368 LIABILITY OF CLIENT TO ATTORNEY. 605 would have ordered the liquidated amount to be paid by the client as a matter of course. ^ § 368. Lien of attorneys on sums recovered — Costs.— An attorney has a lien on a sum recovered in a cause, for his bill of costs. If the money come to his hands he may retain it to the amount of his bill ; he may stop it in transitu if he can lay hold of it, and if he apply to the court, the latter will pre- vent it from being paid over, till the demand is satisfied.^ An attorney has a lien for his bill of costs on money levied by the sheriff under an execution on a judgment recovered by his cli- ent, and is entitled to have it paid over to him, notwithstanding the sheriff has had notice, from the party against whom the ex- ecution issued, to retain the money in his hands, and that the court would be moved to set aside the the judgment for irregu- larity.^ So, an attorney has a lien upon a sum awarded in favor of his client, as well as if recovered by judgment, and if, after notice to the defendant, the latter pay it over to the plaintiff, the plaintiff's attorney may compel a repayment of it to him- self. He is not prejudiced either, by the collusive release from the plaintiff to the defendant.* Where, after the payment of money into court by the defendant in an action, the plaintiff proceeded and recovered a verdict for a greater sum, and then became bankrupt, the court ordered so much of the money paid into court as was sufficient for the purpose, to be paid to the plaintiff's attorney, in satisfaction of his bill of costs, after taxa- tion, and the residue to the plaintiff's assignees.^ In chancery, solicitors have a lien on the funds for their costs, whether in the way of suit or prosecution in lunacy or bankruptcy.^ A solic- itor prosecuting a suit to a decree, has a lien on the estate recov- 1 Gardner v. Tyler, 5 Abb. Pr. N. S. 33,affirining S. C. 36 How. Pr. 63. 2 Turwin v. Gibson, 3 Atk. 719; "Welsh v. Hole, 1 Doug. 338. 3 Griffin v. Eyles, 1 H. Bl. 122. i Ormerod v. Tate, 1 East, 464. See, under the English system as to the effect on the lien of non-taxation of Bill of Costs, De Bay v. Griffen, Law Eec. 10 Ch. Ap. 291; S. C. 12 Moak's Eng. K. 731. Effect of lien on production of docu- ments after change of attorney, Vale v. Oppert, Law Rep. 10 Ch. Ap. 340; S. 0. , 12 Moak's Eng. R. 748; Belaney v. Efrench, Law Rep. 8 Ch. Ap. 918; S. C. 7 Moak's Eng. E. 471. 5 Ouston V. O'Bryan, Barnes, 145. 6 Ex parte Bryant, 2 Rose, 237; 2 Ves. 407; Lann v. Church, 4 Madd. 391. 606 LIABILITY OF CLIENT TO ATTORNEY. § 368 ered, on the party recovering the estate for his bill, but not on the heir, unless it is necessary to revive the suit, in vi^hich case the lien is revived.^ The lien of a solicitor upon a fund in court, which is the result of the proceedings, cannot be defeated by the subsequent insolvency of the client ; the assignees of the in- solvent can only take his property, subject to the claims by which it was affected against him.^ An attorney has a lien on a Judgment not only for the actual costs, but for any portion of the damages which may have been agreed upon, for his compensation ; but he has no lien until the judgment is entered, or at least until after verdict. To protect the lien, the attorney should give notice to the judgment-debtor. Where the judgment is satisfied without reference to the attor- ney's lien, it is said that the proper practice is to apply to the proper court to set aside the satisfaction of judgment, and not for the attorney to himself issue an execution. Still, where the judgment is for costs only, this may in itself be legal notice of the lien, which can be discharged only by payment to the attor- ney.^ A solicitor is entitled to a charge for his costs on property the subject of a successful suit conducted by him against an in- cumbrancer, although the incumbrance be entirely valueless, provided it formed a cloud upon the title. It is no objection to an application for such a charge that it is made in a suit which is no longer pending, and which was never brought to a hear- ing, nor that the property has been sold before the application of the solicitor, especially where the purchaser knew there was a pending suit, and that costs might have been incurred in it ; he ought to have inquired whether the solicitor had been paid.*- And it is held in Tennessee that where by law the attorneys in a cause have a lien upon property involved in litigation for their fees, the lis pendens is a general notice of such lien, and the cli- ent cannot, by a transfer pendente lite, defeat the claim.^ 1 Barnesley v. Powell, Anstr. 102. See Turwin e. Gibson, 3 Atk. 720; Fair- land V. Eneror, Dick. 114. 2 Ex parte Moule, 5 Madd. 462. 8 Grotty «. Mackenzie, 52 How. Pr. 54; Marshall v. Meeks, 51 N. Y. 140; Pulver V. Harris, 53 N. Y. 73; Lesher v. Eoessner, 3 Hun, 217; Welsh v. Hole, 1 Doug. 238; AckermauK. Ackerman, 14 Abb. Pr. 229; Bishop v. Garcia, Ibid. N. S. 72. But see Sweet v. Bartlett, 4 Sand. 661. ■i Jones V. Frost, L. E. 7 Ch. Ap. 773; S. C. 3 Moak. Eug. Q. 622. 6 Hunt V. McClanahan, 1 Heisk. 503. § 869 ' LIABILITY OF CLIENT TO ATTORNEY. 607 It may be stated, as to the attorney's general lien, that the claina should arise from professional employment ; that the lien can be commensurate only with the right of the client ; that if papers are delivered for a specific purpose, the lien cannot usually extend beyond that purpose ; that the lien is frequently subject to the equitable right of set-off, and it may be waived by a contract which is inconsistent with that on which the lien is founded, or by an express contract. § 369. Two kinds of lien — general and particular. — Attorneys ai-e allowed two species of lien as security for the payment of their compensation and costs : the particular or " charging lien " on the property of the client, on account of labor bestowed or money expended in regard to that particular property ; and secondly, a general lien for the balance due them on account of their professional services. The particular lien is not confined to the single deed, docu- ment, or paper which the attorney is employed to prepare, but attaches on all deeds, papers, and documents of the client com- ing to his hands in the regular course of business in the transac- tion for which he is employed, whether for the purpose of perusal, copying, abstracting, or merely exhibiting to a witness on the trial. ^ This lien on deeds and other documents is of very ancient date.^ The particular lien also attaches to the fruits of a judgment or decree which the attorney's services have obtained.^ But it is said he has no Hen on a cause till judgment is entered.* The lien attaches to money payable to the client under the judgment. But an attorney wLo acts as assignee has no power to apply trust funds to the payment of his professional services rendered in the administration of the trast. (Winn V. Crosby, 52 How. Pr. 174.) It has been held in England that an attorney has no lien upon a judgment for real estate (Shaw v. Neale, 6 H. L. Cas. 581, overruling Barnesley v. Powell, Amb. 102); but in New York, in a partition case, where the real estate was sold and the proceeds brought into court, the attorney was allowed a lien upon them. (Creighton v. IngersoU, 20 Barb. 541.) 1 Hollis V. Claridge, 4 Taunt. 809; Eriswellu. King, 15 Sim. 191. 2 1 Doug. 104; Spark v. Spicer, 1 Ld. Raym. 738, 322. 3 Ex parte Price, 2 Ves. Sr. 407; Turwin t). Gibson, 3 Atk. 720; Mitchell w. Old- field, 4 Term Rep. 123; Read v. Dupper, 6 Term Rep. 361; Eandle v. Fuller, Ibid. 45(); Skinner v. Sweet, 3 Madd. 244. 4 Potter V. Mayo, 3 Greenl. 34; Vetchell v. Clark, 5 Mass. 309; 2 Vt. 97. 608 LIABILITY OF CLIENT TO ATTORNEY. • § 369 or by virtue of an award, ^ or paid or payable into court in the course of an action at law or in equity,^ or to real estate recov- ered by a solicitor prosecuting a suit in equity to a decree ; ^ and the lien has been held to attach on sums received or payable upon compromises, even where the verdict and judgment were against the client, on the ground that the money is the fruit of the labor and skill of the attorney.* The lien for costs does not usually extend beyond the costs in the particular action which created it, although a general lien on the fund in court is sometimes recognized.^ The particular lien only attaches on the general result or bal- ance of the costs of the cause, and may therefore be defeated by a counterclaim for costs held by the losing party against the successful one,^ or even by a private bona fide compromise be- tween the parties.^ This destruction of the lien by a set-off seems, however, to be a doctrine that has obtained in England chiefly in the Courts of Chancery and of Common Pleas. In the former, the lien for costs appears only to attach on the gen- eral balance due after adjusting the equitable rights of the par- ties, whether in regard to counter claims for debts or for costs ; ^ and this practice has also been adopted there in the Court of Common Pleas in numerous cases.^ But in the Court of Queen's Bench the lien of an attorney for costs in an action cannot be defeated by the party liable to pay in such action being entitled to receive costs in a counter action, even although the attorney be concerned in both actions. ■'^'' iTabran v. Horn, Mees. & E. 228; Omerod v. Gate, 1 East, 404; Heacht v. Chipman, 2 Aiken, 162. 2 Irving V. Viana, 2 Younge & J. 70. 3 Barnsley v. Powell, Amb. 102. *Davis !). Lowndes, 3 Com. B, 827; Hopewell v. Amwell, 2 Halst. 4. 5 Lann v. Church, 4 Madd. 391 ; Hall v. Laver, 1 Hare, 571. « Howell u. Harding, 8 Bast. 362; Pijes v. Adams, 4 Taunt. 632. ' Welsh V. Hole, 1 Doug. 238. STaylor v. Popham, 15 Ves. Jr. 72; Ex parte Rhodes, Ibid. 539. ^Schoole V. Noble, 1 H. Black. 23; Nunez v. Modgliani, Ibid. 217; Roberts v. Mackoul, 2 Blackst. 827; Vaughan v. Davies, 2 H. Black. 440; Symonds v. Slills, 8 Taunt. 526; Webber v. Nicholas, 5 L. J. P. C. 19; Hall v. Ody, 2 Bos. & P. 28 ; Emden v. Darley, 1 New Rep. 22. i» Mitchell V. Oldfleld, 4 Term Rep. 124; Moreland v. Pasley, 2 H. Black. 441; Eandle i>. Fuller, 6 Term Rep. 456; Glaister v. Heaver, 8 Ibid. 70; Middleton v. Hill, 1 Maule & S. 240; 1 Dowl. & R. 168. § 370 LIABILITY OF CLIENT TO ATTORNEY. 609 Lord Mansfield says : ^ "An attorney has a lien on the' money recovered by his client, for his bill of costs ; if the money come to his hands, he may retain to the amount of his bill. He may stop it in transitu, if he can lay hold of it. If he apply to the court they will prevent its being paid over till his demand is satisfied. I am inclined to go still further, and to hold that if the attorney give notice to the defendant not to pay till his bill should be discharged, a payment by the defendant after such notice would be in his own wrong, and like paying a debt which has been assigned after notice." Courts have prevented parties to a cause from defeating an attorney's claim by private arrangements.^ Yet the courts dislike to interfere at the in- stance of the attorney to prevent the parties from amicably adjusting a contested case;^ but where the attorney's only chance of payment depends upon the result of the cause, the courts will not allow even a release obtained from the plaintiff pending the proceedings to be set up to defeat the claim, unless the proceedings are taken by an unauthorized attorney when they may be adjusted without the concurrence of the attorney.* § 370. The particular or charging lien.— Under the com- mon law in England, an attorney or solicitor is entitled to re- cover his taxable costs from a fund recovered by his aid, both in legal ^ and equitable proceedings.^ The lien attaches on the ^ Welsh V. Hole, 1 Doug. 338. See, also, Bead v. Dupper, 6 Term E. 361 ; Bradt u. Koon, i Oowen, 416. 2 Moore v. Angell, 11 Jur. 485 ; Talcott v. Bronson, 4 Paige, 501. s Ex parte Hart, 1 Barn. & Add. 666; 1 Dowl. 324; Quested v. Lallis, 10 Mees. & "W. 18; 1 Dowl. N. S. 888; 11 Law J. X. S. Ex. 345; Clark v. Smith, 1 Dowl. & L. 960; Talcott v. Bronson, 4 Paige, 501. ^ Ex parte Hart, 1 Barn. & Add. 666; 1 Dowl. 324; Quested v. Lallis, 10 Meea. & W. 18; 1 Dowl. N. S. 888; 11 Law J. N. S. Ex. 345; Clarli v. Smith, 1 Dowl. & L. 960; 6 Man. & G. 1051; 13 Law J. N. S. C. P. 97; Tallcott v. Bronson, 4 Paige, 501; Wright «. Burrough, 3 Com. B. 344; 4 Dowl. & L. 226; Davies v. Lowndes, 3 Com. B. 827; Ex parte Bryant, 2 Rose, 237; 1 Madd. 49; Worrall v. Johnson, 2 Jacob & W. 218; Matter of Southwick, 1 Johns. Ch. 22; Abbott v. Rice, 3 Bing. 132; 2 Paige, 276. 6 Turwin v. Gibson, 3 Atk. 720; Kellett v. Kelley, 5 I. E. Eq. 274; Bawtree v. Watson, 2 Keen, 713; Skinner v. Sweet, 3 Madd. 244. « Barker «. St. Quentin, 12 Mees. & W. 461; Vaughn v. Davies, 3 T. E. 665; Smith V. Winter, 18 Week. R. 447; In re Freehold Co., 21 Law T. N. S. 195; In re Bank of Hindustan, 3 Law E. Ch. 125; In re Jeff. Davis, Law Eep. Adm. 1. A. & C— 39. 610 LIABILITY or CLIENT TO ATTORNEY. § 370 fruits of a judgment or decree.^ It attaches to the money pay- able to the client thereunder, or by virtue of an award,^ and to money paid or payable into court in the course of an action or suit, or in any other way, if the proceeds of the labor and skill of an attorney.^ The lien has been lield to attach on sums re- ceived or payable by way of compromise, to the client in a cause, even where the verdict and judgment are against him ; for the money is regarded as the fruit of the attorney's labor and skill, especially if he has taken up the cause of a poor person.* In th^ United States, the doctrine of the " charging lien " of the attorney appears to have been pushed in some courts quite as far as in England. The United States Supreme Court has decided that an attorney employed to prosecute a claim before a commission for a contingent fee of five per cent, had a lien for this amount on the fund recovered, and such a one as the court would enforce by a bill in equity.^ In several State courts, the lien has been held to cover, not xnerely costs and advances, but fees.^ In some States, the lien is regulated by statute." In others, the lien is totally denied ; but the lawyer has a right to deduct from funds in his hands.^ In still other courts the lien is limited in its extent to statu- tory costs and disbursements.^ It seems tolerably well settled 1 Ex parte Price, 2 Ves. Sr. 407; Turwin v. Gibson, 3 Atk. 720; Mitchell v. Old- field, 4 T. E. 123; Read v. Dupper, 6 T. R, 361; Randle v. Fuller, Ibid. 456: Skin- ner V. Sweet, 3 Madd. 244. 2 Tabran v. Horn, Moody & R. 228; Omerod v. Gate, 1 East, 404. 8 Irving V. Viana, 2 Y. & Jer, 70; Barnesley v. Powell, Amb. 102. * Davis V. Lowndes, 3 Com. B. 827; Hopewell v. Amwell, 2 Halst. 4. s AVylie v. Coxe, 15 How. 415. 6 Stratton v. Hussey, 62 Me. 286; ISTewbert v. Cunningham, 50 Me. 231; Cooley ■U.Patterson, 52 Me. 472; Andrews!). Morse, 12 Conn. 444; Benjamin v. Benja- min, 17 Conn. 110; Walker v. Sargeant, 14 Vt. 247; Hutchinson v. Howard, 15 Vt. 544; Hutchinson v. Pettes, 18 Vt. 616; Power v. Kent,l Cow^n, 172; Mar- tin V. Hawks, 15 Johns. 405; Rooney i'. R. R., 18 N. Y. 368; Bowling Green Bank V. Todd, 52 N. Y. 489; Sexton v. Pike, 13 Ark. 193; Waters c. Grace, 23 Ark. 118; Carter v. Davis, 8 Fla. 183. ' See Baker «. Cook, 11 Mass. 236; Citizens' Bank i\ Culver, 54 X. H. 327. 8 Hill V. Brinkley, 10 Ind. 102; Frissell v. Haile, 18 Mo. 18; Irwin v. Workman, 3 Watts, 357; Walton v. Dickerson, 7 Pa. 376; Dubois' Appeal, 38 Pa. 231; Xew- baker v. Alricks, 5 Watts, 183. See Getchell v. Clark, 5 Mass. 309; Simmons v. Almy, 103 Mass. 33. 9 Wright B. Cobleigh, 21 N. H. 339; Young v. Dearborn, 27 N. H. 324; Currier V. R. R., 37 N". H. 223; Wells v. Hatch, 43 N. H. '246; Cozzens u. Whitney, 3 E. T. 79; McDonalAw. Napier, 14 Ga. 89; Humphreys. Browning, 46 111. 476; Elwood V. Wilson, 21 Iowa, 523; Ex parte K.\ii\ 1 Gal. 331; Mansfield v. Dorland, 2 Cal. § 370 LIABILITY OF CLIENT TO ATTORNEY. 611 that the lien does not attach until judgment.^ No lien exists in favor of attorneys of distributees on a fund brought into a court of equity or probate for distribution to the parties entitled.^ In England, by the 23 and 24 Vict., chap. 127, sec. 28, in every case in which an attorney or solicitor shall be employed to prosecute or defend any suit, matter, or proceeding in any court of justice, it shall be lawful for the court or judge, before it has been heard, or is pending, to declare the attorney entitled to a charge upon the property recovered or preserved, and upon such declaration being made, such attorney or solicitor shaU have a charge upon or against, and a right to payment out of the property of whatsoever nature, tenure, or kind the same may be which shall have been recovered or preserved through his instrumentality, for the taxed costs, charges, and expenses. The court or judge may make such orders' for taxation of, or for raising and payment of such costs, charges, and expenses out of the property as may be just and proper ; and all convey- ances and acts done to defeat, or which shall operate to defeat, such charge or right, shall, unless made to a hona fide purchaser, for value with possession, be absolutely void, and of no effect as against such charge or right ; provided, that no such order shall be made in any case in which the right to recover payment of such costs, etc., is barred by any Statute of Limitations. Since this statute an attorney can only have a charge upon property recovered or preserved by him for his client in respect of the costs in the particular suit or proceeding in which they were incurred, and not for general costs. ^ Where a solicitor was employed by the next friend in establishing an infant's title to land, the infant having attained his majority, a court of equity 507; Dodd v. Brott, 1 Minn. 2.70. See Stephens v. Weston, 3 Barn. & C. 538; Hough V. Edwards, 1 Hurl. & N". 171; Laun u. Church, 4 Madd. 391; Bozon u. Bolland, 4 Mylne & C. 354; Perkins v. Bradley, 1 Hare, 23. See, also, Dennett !/. Cutts, 11 N. H. 163; Citizens' Nat. Bank v. Culver, 54 N. H. 327. 1 Potter V. Mayo, 3 Green, 34; Hobson v. Watson, 34 Me. 20; Getohell «. Clark, 5 Mass. 308; Foot v. Tewksbury, 2 Vt. 97; Hutchinson v. Howard, 15 Vt. 247; Hutchinson v. Pettes, 18 Vt. B16; Pinkerton v. Easton, Law Eep. Ifi Eq. 257: Foxon V. Gascoigne, Law Rep. 9 Ch. 654; Sweet v. Bartlett, 4 Sand. 661; Henchey V. Chicago, 41 111. 136. See Hough v. Edwards, 1 Hurl. & N". 171. 2McCaa v. Grant, 43 Ala. 262; Dubois, Appeal of, 38 Pa. 231; In re liamber- son, 63 Barb. 297. 3 Thompson, Ex parte, 3 L. T. N. S. 317 ; Wilson v. Bound, 4 Giff. 416; 10 Jur. N. S. 34; 12 Week. E. 402; 9 L. T. N. S. 675. ' 612 LIABILITY OF CLIENT TO ATTORNEY. § 371 declared so much of the costs as remained unpaid a charge on the land recovered.-' A solicitor's lien for costs upon a fund in court recovered by his exertions is independent of the 23 and 24 Vict., sec. 28, and he is entitled to priority in respect thereof over a judgment- creditor who has obtained a charging order before the solicitor.^ So a solicitor is entitled to a charge upon property recovered or preserved for his costs of the litigation, by means of which it was recovered or preserved, irrespective of his client's interest in the property, and although it turns out that the latter has not and never had any interest therein.^ An attorney was de- clared entitled to a charge upon land recovered by him in eject- ment ; his client having died since the action, the lands being in course of administration, the judge before whom the ejectment was tried not having been applied to, and a court of equity, be- fore whom the case had been brought in another form, having declined to make an order for the common-law costs.* § 371. The general lien. — In addition to the particular lien, attorneys have a general lien for the balance due to them in their employment, but not for other money, as for money lent.^ This lien, however, has been said not to be favored at common law ; and the reason given is, that it is in restraint of property,^ and it does not attach like the particular lien on the fund in court, or the property in dispute,^ except in cases of bankruptcy or lunacy, where the general lien for the management of the property attaches on the fund or body of the estate ; ^ but in other cases it attaches only on papers and documents which 1 Bouser v. Bradshaw, 4 GifC. 260; 9 Jur. N. S. 1048,- 9 L. T. N. S. 195. 2 Haymes «. Cooper, 10 Jur. N. S. 303; 33 Law J. Ch. 488; 12 "Week. E. 539; 10 L. T. N. S. 87. 8 Bailey v. Birchall, 2 Hem. & M. 371; 11 Jur. N. S. 57. * Bx parte Seaman, 3 Hurl. & C. 148; 10 Jur. N. S. 592; 33 Law J. Ex. Cb. 204; 12 Week. E. 748; 10 L. T, N. S. 345. o Ex parte Nesbit, 2 Sohoales & L. 279; Ex parte Stirling, 16 Ves. 259 ; Ex parte Pemberton, 18 ^es. 382; Stevenson v. Blaoklock, 1 Maule & S. 535; 12 Wend. 261; Worrall v. Johnson, 2 Jacob & W. 218; Dennett v. Cutts, 11 N. H. 163; Walker v. Sargeant, 14 Vt. 247. 6 Scarfs V. Morgan, 4 Mees. & W. 285. ' Laun V. Church, 4 Madd. 391; Lucas v. Peacock, 8 Beav. 177; White v. Eoyal Exchange Assurance Co., 1 Bing. 21. 8 Barnesley v. Powell, Amb. 102; Ex parte Price, 2 Ves. Sr. 407. § 371 LIABILITY OF CLIENT TO ATTORNEY. 613 come into the possession of the attorney or solicitor -in the course of his employment as such. It does not attach on docu- ments which he acquires in a different capacity, as prochein ami to all infant, for instance,^ though if they are in his hands for professional services, the particular object for which they were intrusted to him is immaterial,^ unless it is expressly agreed to the contrary, or unless there is something in the nature of the transaction which forbids the idea of a lien, as a deposit on a loan of money .^ Here there is only a restricted and qualified possession, and this excludes the idea of a general or specific lien.* But if the property is allowed to remain in an attorney's hands, after the specific purpose for which it is left is fulfilled, the general lien will attach.^ As in other cases of liens, the attorney's lien on documents deposited with him by a client will not avail against third parties claiming adversely to the client. The attorney's right of pos- session, in other words, can be no greater than his clierit's, and therefore a party receiving title-deeds for the purpose of inves- tigation, with a view to the advance of money on them, cannot, by depositing them in the hands of his attorney, confer upon him a right of detention for the costs of the investigation, if no loan be ultimately made, although it be agreed that the mortgagor should pay all expenses.^ And a lien which has attached on title-deeds in the attorney's hands will not extend to cover costs incurred after the interest of the client has been determined. Bankruptcy of the client will prevent any subsequent lien from attaching on his title-deeds in the attorney's hands, and so may 1 Montague on Lien, 1, 53. 2 Ex parte Sterling, 16 Ves. 258; Stevenson v. Blacklock, 1 Maule & S. 535. SBalch V. Symes, 1 Turn. & R. 87; Lawsou v. Dickinson, 8 Mod. 307; Wor- rall V. Johnson, 2 Jacob & W. 218. ^Judson V. Btheridge, 1 Cromp. & M. 473; Jackson v. Camming, 5 Mees. & W. 542. 6 Ex parte Pemberton, 18 Ves. 382. 6 Pratt V. Vizard, 5 Barn. & Adol. 808; 2 Nev. & M. 455; Hollis v. Claridge, 4 Taunt. 807; Symons v. Blake, 2 Cromp. M. & R. 416; 1 Gale, 182; Smith v. Chi- chester, 2 Dru. &"War. 293; Young v. English, 13 Law J. Chan. N. S. 76; Ex parte Nesbitt, 2 Schoales & L. 279; Lightfoot v. Keane, 1 Mees. & W. 745; 2 Gale & D. 138; 16 Ves. 258, 275; 18 Ves. 282; 13 Ves. 161; House v. Park, 2 Term E. 376; Wakefield v. Newbon, 6 Q. B. 276; Ogle v. Story, 4 Barn. & Adol. 735; 1 Nev. & M. 734. 614 LIABILITY OF CLIENT TO ATTORNEY. § 372 a judgment agcainst the client.^ The lien extends to costs legiti- mately incurred by the attorney against , the client in enforcing the original claim.^ It will avail against the Statute of Limita- tions,^ and against the assignees of the party who created the lien,* and against his executors or administrators,^ and against his creditors proceeding by judgment and execution or by foreign attachment,^ and against the client's mortgagor taking a con- veyance after the lien had attached to the title-deeds in the hands of the mortgagee's attorney.^ § 372. The attorney's retaining lien. — The books refer to " retaining liens " as a distinct class. They are, I conceive, a species of the general lien. The attorney has a retaining lien on the client's funds in his hands, as a security for his labor.^ The lien also extends to papers and documents in the hands of the attorney, and coming to him in the regular course of busi- ness.® \-By the English law the lien is not confined to the single deed or document which he has himself been employed to pre- pare, but attaches on all the deeds, papers, and documents of his client coming to his hands in the regular course of business, in the transaction in which he is employed ; ^^ and the lien applies when the papers are given to the attorney for the purpose of perusal, copying, abstracting, or merely exhibiting to a witness on the trial of an action.-'^ The lien at common law, both in England and America, has 1 Ex parte Lee, 2 Ves . Jr. 285 ; In re Dean, 2 Mont . D. & D. i38 ; Ex parte Swin- burne, 3Dea. 396; Ex parte Bush, 7 Vin. Abr. 74; Oxenham v. Esdaile, 3 Barn. & C. 225; Blunden v. Desarte, 2 Dru. & War. 405. 2 In re Sharpe, 1 Dowl. 432. 3 Higgins V. Scott, 2 Barn. & Ad. 413; In re Bromhead, 16 Law .J. Q. B. 355; 5 Dowl. & D. 52; Speass v. Hartley, 3 Esp. 81. * Lambert v. Buckm aster, 2 Barn. & C. 616. 6 Turner ti. Gibson, 2 Ves. 407. " Nathan v. Giles, 5 Taunt. 558. i 7 Ogle V. Story, 4 B. & Ad. 736; 1 Nev. & M. 474. « Wharton on Agency, sees. 623, 624; Welsh v. Hale, Doug. 238; Miller i'. At- lee, 3 Ex. 799; Hanson v. Eeece, 3 Jur. N. S. 1204; In re Paschal, 10 Wall. 483. 9 Hollis I'. .Claridge, 4 Taunt. 809. i« Hollis V. Claridge, supra; Ex parte Nesbitt, 2 Schoales & L. 279; Gibson v. May, 4 De Gex, M. & G. 512; Taunton v. Goforth, 6 Dowl. & R. 384; Rex v. Wil- liams, 2 Har. & W. 277; Rox v. Saukey, 6 Nev. & M. 839; 1 Doug. 104; Spark v. Spicer, 1 Ld. Raym. 322, 738. 11 Friswell v. King, 16 Sim. 191. § 373 LIABILITY OF CLIENT TO ATTORNEY. 615 been held to cover papers placed in the attorney's hands for col- lection or other professional action, and the client canijot recover the documents back without paying to the attorney all that is due for his services.i The lien does not attach to papers received in any other than a professional capacity ,2 nor will the accidental possession of papers sustain the lien.^ If the papers are delivered to the lawyer for a specific pur-, pose merely, he can have a lien only In respect to such purpose, and not in respect to other transactions.* But if the lawyer is allowed to retain the papers after this specific purpose is aban- doned, he may then be entitled to a general lien.^ It seems that the attorney, whose authority is revoked pend- ing the suit, will be compelled, if he have no interest in the suit, to surrender the papers, unless the dismissal be unreasonable.** § 373. Lien on deeds and papers generally. — Every one, whether attorney or not, has, by the common law, a lien on the specific deed or paper delivered to him, to do any work or busi- ness thereon, but not on other muniments belonging to the same party unless the person claiming the lien be an attorney or solic- itor, and the lien extends to the representative of a deceased ^ Wliarton on Agency, sec. 625 ; Warburton v. Edge, 9 Sim. 508 ; 1 Sim. & St. 457 ; Ex parte Sterling, 16 Ves. 258 ; Cowell v. Simpson, 16 Ves. 275 ; Ex parte Nesbitt, 2 Schoales & L. 279; Stevenson i\ Blalielocls;, 1 Moore & S. 535; Friswell V. King, 15 Sim. 191; Kemp «. King, 2 Moody & E. 437; Car. & M. 396; Champer- townj). Scott, 6 Madd,93; Ogle v. Storey, 1 Moody & M. 474; 4 Barn. & Adol. 735; Dennett v. Cutts, 11 N. H. 1G3; Howard v. O.sceola, 22 Wis. 453; Stewart v. Flowers, 44 Miss. 513; White v. Harlow, 5 Gray, 463; 2 Jacob & W. 218; Blun- den V. Desart, 2 Dru. & War. 423; Turner r. Deane, 3 Ex. 839; In re Moss, 35 Beav. 526; Richards v. Platet, Craig. & P. 458. See, contra, Walton v. Dicker- son, 7 Pa. 376; Dubois' Appeal, 38 Pa. 2.31. See, also, Newton v. Porter, 5 Lans. 416. 2 Wickens v. Townsend, 1 Russ. & M. 361 ; Bozon v. Bblland, 4 Mylne '& G. 354; Ex parte Nesbitt, 2 Schoales & L. 279; 1 Hofe. Ch, 35. 3 In re Moseley, 15 Week. E. 975; In re County Assurance Co., 38 Law J. Ch. 231; In re Pulbrook, Law E. 4 Ch. 627; Berrie v. Howitt, 39 Law J. Ch. 119; Be- laney v. French, Law R. 8 Ch. 918. i Baleh v. Symes, 1 Turn. & E. 192 ■■ Lawson v. Dickinson, 8 Mod. 306. See Bowling Green Savings Inst. v. Todd, 52 N. Y. 489; Colmert). Ede, 40 Law J. Ch. 185; Eoxonu. Cascoigne, fTLawR. Ch. 654. 6 Ex parte Pemberton, 18 Ves, 282; Ex parte Stirling, 16 Ves. 258. 6 Belaney v. French, 43 Law J. Ch. 312; 29 L. T. N. S. 70S; Lord v. Wormley, Jacob, 580; In re Faithful,' Law Eep. 6 Eq. 325; Farhall v. Farhall, Law Eep. 7 Eq. 286. 616 LIABILITY OP CLIENT TO ATTORNEY. § 373 solicitor.! But the lien which an attorney has is only commen- surate with the right which the party delivering the papers to him has therein.^ A solicitor, therefore, has no li.en against a remainder-man on deeds put into his hands by a tenant for life.* In chancery, a solicitor has a lien for his costs upon all papers that come into his hands for the purpose of business, though they may not be papers in the cause in which he makes the demand.* The lien on documents does not extend to general debts, but only to what is due in the character of an attorney. Where the at- torney had the instrument in his possession upon which the fund depended, and through the medium of which only the money in court could be obtained, it was held that his lien could not be affected by a compromise having taken place, or by the money having been paid into court.^ An attorney has a lien for his general balance on papers of his.client which come to his hands in the course of his profes- sional employment. He has a lien on the papers in a particular suit, not only for his costs in that suit, but for his general costs.^ But the attorney's lien is only commensurate with the right which the party delivering the papers to him has therein. It is only co-extensive with the rights of the client, and, therefore, as between the plaintiff and defendant, the lien of the plaintiff's attorney cannot affect the right of the defendant.'^ Deeds, de- posited with an attorney for a particular purpose, and after that had failed allowed to remain with him, are subject to the gen- eral lien.^ But a solicitor has no lien upon the will of his client.^ A mortgagee's attorney, having possession of the title-deeds, has a lien upon them for costs due to him from the mortgagee.^" But it has been held that the attorney of an intended mortgagee has no lien as against the intended mortgagor for the costs of 1 Redfearn v. Sowerby, 1 Swanst. 84. •■^ Hollis V. Claridge, 4 Taunt. 807. 8 Ex parte Nesbitt, 2 Schoales & L. 279. * Ex parte Nesbitt, 2 Sclioales & L. 279. 6 Worrall v. Johnson, 2 Jacob & W. 218. 6 Stevenson v. Blakelock, 1 Maule & S. 535; In re Broomhead, 5 Dowl. & L 52- 16 La-w J. Q. B. 355. ' Symons v. Blake, 2 Cromp. M. & R. 416; Hollis u. Claridge, 4 Taunt. 807. 8 Ex parte Pemberton, 18 Ves. 282. 9 Balch V. Symes, 1 Turn. & R. 87. i» Oglee V. Storey, 1 Nev. & M. 474; 4 Barn. & Adol. 735. § 373 LIABILITY OF CLIENT TO ATtORNEY. 617 preparing the mortgage upon deeds delivered by the intended mortgagor to the intended mortgagee, and by the latter handed to the attorney for the purpose of investigating the title.i Where a mortgagee of lands handed over the deeds to his attor- ney, and the mortgagor paid the principal and interest, and the lands were reconveyed to him, the court held that the attorney could not retain the deeds against him as security for the ex- penses due from the mortgagee to the attorney.^ The lien of the attorney remains, though the claim is barred by the Statute of Limitations.^ It is not confined to deeds and papers, but extends to other articles delivered to him for the purpose of being exhibited to witnesses on the trial of an action.* It attaches upon money received by way of compromise, though the verdict and judgment are against the client.^ But the at- torney has no lien on his client's money in his hands beyond the amount in which the latter is indebted to him.^ Where an attorney has a lien upon the papers of two persons jointly, the court will not try the rights of the parties by directing to whom they shall be given up upon the lien being satisfied.' Nor can the lien be affected by reference of the cause and all matters in dispute between the parties.^ An attorney having a lien on a deed for the costs of drawing it, is not bound to produce it on a subpoena duces tecum for the client.^ Where the directors of a company carry on a business not authorized by the deed of settlement, and costs are thereby in- creased, the solicitors of the company have no lien for their 1 Pratt V. Vizard, 2 Nev. & M. 455; 5 Barn. & Adol. 808, 2 "Wakefield v. Newbar, 6 Q. B. 276. See, as to lien on deeds deposited with attorneys by trustees, Lightfoot v. Keane, 1 Mees. & W. 745. 3 In re Broomtiead, 16 Law J. Q. B. 355; 5 Dowl, & L. 52. < Friswell v. King, 15 Sim. 191. 5 Davies v. Lowndes, 3 Com. B. 823. 6 Mijler v. Alter, 3 Ex. 79H; 13 Jur. 431. " Duncan v. Eichmond, 1 Moore, 99; 7 Taunt. 391; Esdaille v. Oxenham, 3 Barn. & C. 225; 5 Dowl, & R. 49. 8 Cowell V. Betteley, 4 Moore & S. 265; 10 Bing. 432, But see In re Sharpe, 1 D. P. C. 432. 3 Kemp V. King, 2 M, & R. 437. As to whether the court can compel the pro- duction of papers on which the attorney has a lien, see Gregory v. Creswell, 1 Holt, 17; Commerell v. Paynton, 1 Swanst. 1; Brassington v. Brasatngton, 1 Sim. & St. 455; Lord v. Wormleighton, 1 Jacobs, 580; Moir v. Mudie, 1 Sim. & St. 282; Colegrove v. Manley, 1 Turn. & R. 400; Mountford u. Scott, 1 Ibid. 274; Heslop V. Metcalf, SMylne & C. 183; Cane v. Martin, 2 Beav. 584. 618 LIABILITY OF CLIENT TO ATTORNEY. § 373 costs on the papers of the. company. Where, in such a case, moneys have been recovered in any of the actions, although the solicitors would have a lien for their costs on such moneys while in their hands, yet after they have paid over such moneys to the company, and allowed them to be incorporated with the general assets, they have no lien on those assets.-' Where deeds are delivered for the purpose of conducting a suit, the general lien prevails ; but where they are delivered for a specific purpose, there can be no lien beyond that purpose.^ Where a client executes a deed in favor of his solicitor, reserv- ing a life interest and power of revocation, it is the duty of the latter to leave a counterpart in the hands of his client, and he cannot refuse to produce the deed on the ground of lien.^ The lien does not extend to deeds or papers received merely as stew- ard of a manor and not in the capacity of an attorney.* Nor does it extend to the will of the client.^ Nor to papers which he obtains as prochein ami? An attorney may refuse to deliver up papers till his fees are paid.''^ He may retain moneys be- longing to an executor, as such, for work done for the testator.* Whei'e an attorney employed a clerk in some cases, and died insolvent, it was held the clerk in. court had a lien on the money in the hands of the clients.^ An attorney in possession of a deed to which he is the attesting witness, and claiming a lien thereon, cannot be compelled to produce it ; he can only be treated like any other witness, and compelled to attend by sm6- poena duces tecum.^^ But where a wife sued to enforce a settle- ment, the attorney who prepared it was not allowed to retain it on the ground of his lien against the husband, and was ordered to produce it, and to pay all costs in cons.equence of refusal.^^ iln re Phoenix Company, 1 H. & M. 433. 2 Ex parte Stirling, 16 Ves. 258; Ex parte Pemberton, 18 Ves. 282. 3 Balch V. Symes, 1 Turn. & R. 87. * Champernouue v. Scott, 4 Madd. 209. 6 Balch V. Symes, 1 Turn. & E. 87; Georges v. Georges, 18 Ves. 294. ^Montague on Lien, 53. 7 Anon. Comb. 43, 337; 12 Mod. 516, 554. 8 Bishop V. Huggins, 1 Barnes. 31. 9 Waldron's Case, 2 Str. 1126. See, also, Stevenson v. Blakelock, 1 Maule & S. 635; Esdaile v. Oxenham, 3 Barn. & C. 225; 5 Dowl. & R. 49; 2 Younge & J. 493. i« Busk V. Lewis, 6 Mad. 29. 11 Brassington v. Brassington, 1 Sim. & St. 455. § 374 LIABILITY OF CLIENT TO ATTORNEY. 619 § 374. Summary jurisdiction to order delivery of pa- pers, as affecting the attorney's lien. — We have already seen that the court will, under proi^er circumstances, compel an at- torney to deliver papers intrusted to him for perusal.^ , And this, though they concern him and his title, or which were de- livered to him by the order of another person ; and where he gives a receipt for them, he may be compelled to redeliver them on demand,^ especially on payment of all due to him.^ If the writings were delivered for a special purpose, the attorney can- not detain them for another demand, as where they were deliv- ered for the purpose of preparing a mortgage, the attorney has not, as against the mortgagee, a general lien in respect of his de- mand against the mortgagor.* But the court will not interfere in favor of a third person if the attorney has delivered back the papers to his own client from whom he received them, though they may in fact belong to another.^ If an attorney delivers papers to the attorney for the other party, the latter attorney may be compelled to redeliver them.® The general rule is, that an attorney is bound, upon payment of what is due him from a client, to redeliver deeds and papers to the client, and an attachment may be obtained against him if he refuse to deliver them on demand, but not without a demand.'' It must be understood, however, that the writings must come to the attorney's possession in the way of his business as an attor- ney ; for if they come to him in any other manner or on any other account than in the way of his. business, the party must resort to his action, and the attorney cannot, as in the first-men- tioned class of cases, be compelled to produce them on motion or attachment.^ Still, it must be acknowledged that the courts have sometimes exercised their summary jurisdiction where the 1 Ante, sec. 93. ■^ Tyack's Case, Skin. 1; 2 Mod. 340; Strong);. Howard, Str. 621. 8 Goring v. Bishop, 1 Salk. 87. / * Lawson v. Dickenson, 8 Mod, 306. 5 Dottin's Case, Str. 547. 6 Strong V. Howe, Str. 621. '' Russell's Case, Say. 125; Strong v. How, 1 Str. 621; Lawson v. Dickenson, 8 Mod. 306: 8 Mod. 339; 1 Kenyon, 129; Barton w.Baynes, 1 Barnes, 18; Hamilton V. Incledon, 4 Brown Pari. 0. 4. 8 Goring v. Bi.shop, 1 Salk. 87; Eussell's Case, Say. 125; Cocks v. Harmon, 6 Bast, 404; Lowe's Case, 8 East, 237; Eoss v. Laughton, 1 Ves. & B. 349. 620 LIABILITY OF CLIENT TO ATTORNEY. § 374 attorney did not receive them, strictly speaking, as an attorney, but as a steward of the court or receiver.^ The court having jurisdiction tcr order the delivery of deeds and papers, to do justice between the parties, has also power to compel, as a concurrent act, the discharge of any lien that the attorney may have for his costs ; to ascertain the amount of which, taxation may be requisite, and is consequent upon the order of delivery.^ If it appear that a third person is interested in the deeds, the court will take a security from the person to whom they are delivered, to produce them on demand, for the benefit of such third party.^ Whenever a client is bound to produce a deed for the benefit of a third person, so also is his attorney, though the latter may have a lien against it, for costs against his client.* An attorney submitting to produce title- deeds of his client, in his possession, as the court shall direct, may be called upon to produce them, though the principal him- self could not have been called upon to do so.^ A solicitor declining to be further concerned in a cause, is not entitled to compel payment of his costs by refusing to per- mit such inspection of ' documents in his possession, or such pro- duction of them before the court, as may be necessary to conduct the cause.^ The court will not order the personal representa- tive of a deceased solicitor to deliver the papers in the cause to another solicitor, without payment, or security for the payment of the bill.'^ But if an attorney assign over his business, the court will order the papers to be delivered to the new attorney, upon signing a receipt for them, and undertaking to hold them subject to the former's lien.^ Sometimes the order is made upon a deposit of a sufficient amount to cover the bill and costs of taxation.^ An attorney upon receiving the amount of his 1 Hughes w. Mayre, 3 Dura. & B. 275; Ex parte Grubb, 5 Taunt. 206; Ex parte Corpus Christi College, 6 Taunt. 105. But see Cocks v. Harmon, supra. 2 Ex parte Partridge, 2 Mer. 501. 3 Hughes !). Ma.yre, 3 Durn. & E. 275; Ex parte Uxbridge, 6 Ves. 425; Strong «. Howe, 1 Strange, 621 ; Ex parte Smith, 5 Ves. 700. ■• Furlong v. Howard, 2 Schoales & L. 115. ^ Fenwiek v. Eeed, 1 Mer. 114. 8 Commerell ti. Boyston, Swanst. 1. ' Bolton V. Tate, Swanst. 84.' 8 Colegrave v. Hanley, 1 Turn. & E. 401. " Glutton V. Pardon, 1 Turn. & E. 301. § 375 LIABILITY OF CLIENT TO ATTORNEY. 621 bill, must not only deliver up the originals, but also the drafts and copies. 1 § 375. Waiver and loss of the lien.— A lien upon deeds, etc., in the attorney's hands, may be waived or lost by settino- up an inconsistent claim, by parting with the possession, by bringing an action, or % taking other security for the claim. It is deemed to be waived by his denying the client's title to the deeds,2 or setting up his own claim or a third party's,^ or claim- ing other right of detention aside from the lien.* A simple re- fusal to deliver without referring to the lien, is not, however, a waiver,^ nor is the claiming of more than is actually due.^ The lien is usually lost by parting with the possession of the deeds and instruments upon which they attach, especially if they are improperly parted with,^ but not if they are improperly wrested from the attorney's possession by others, through fraud and deceit, and without collusion on the part of the attorney,^ or given to the client for a temporary purpose, without prejudice to the lien.^ The lien is also lost by bringing an action and obtaining judgment for the amount of the attorney's claim,^" or by an implied satisfaction of the lien on the part of the attorney.^i The lien may also be waived by taking a security for the debt which forms the subject of the lien. At least if the security be of a higher nature, as a bond, it would seem to be entirely lost ; and so, if the security be payable at a future day ; ^^ and during the time the instrument has to run, the client is entitled 1 Ex parte Horsf all, 7 Barn. & C. 528. See further, Davidson v. Napier, 1 Sim. 247; Alger v. HefEord, 1 Taunt. 38; Ex parte Titley, 2 Rose, 83; Duncan v. Rich- mond, 1 Moore, 99; Pearson v, Sutton, 5 Taunt. 364; Court v. Gilbert, 2 Barn. 263; Ross v. Laughton, 1 Ves. & B. 349. 2 Boardman v. Sill, 1 Camp. 310. 8 Knight V. Harrison, and Scar£e v. Morgan, 4 Mees. & W. 270. 4 Dirks V. Richards, 5 Scott, N. R. 534. 6 "White V. Gainer, 2 Bing. 23; Owen v. Knight, 4 Bing. N. C. 54. 6 Scarf e v. Morgan, 4 Mees. & "W". 270. See Jones v. Tarleton, 9 Mees. & W. 675. ' Clark u. Gilbert, 2 Bing. N. C. 353; Scott v. Newington, 1 Macl. & E. 252; Jones V. Cliffe, 3 Tyrw. 577. 8 Dicas V. Stokely, 7 Car. & P. 587. ^Blunden v. Desart, 2 Dru. & War. 405. See Jones v. Pearte, 1 Strange, 556: Hartley v. Hitchcock, 1 Starkie's ]!fisi Prius Reports, 201; 8 Taunt. 149. i« Ex parte Salomon, 1 Glyn. & J. 25. 11 Cooper V. Harrison, 2 Younge & C. 514; Coopwood v. Wallace, 12 Ala. 790. 12 Hewison v. Guthrie, 2 Bing. K. C. ; Balch v. Symes, 1 Turn. & R. 87. 622 LIABILITY OF CLIENT TO ATTORNEY; §§ 376-7 to the possession of the papers ; ^ but perhaps, if the client does not exercise this right, the attorney, on the failure of the security, may be entitled to his original lien, yet it is not altogether cer- tain.^ § 376. When the lien is superseded. — If an attorney re- fuse to proceed with his client's cause* his lien is superseded, and he must allow the new attorney to see papers detained in his possession until his bill is settled, at all reasonable times, and he must himself attend with them in court, or suffer the new attor- ney to have them for that purpose.^ If the solicitor take a se- curity for the amount of his bill, his lien will be superseded.* Agents of attorneys have liens on papers in their hands for amounts due them as agents in the cause, but they are not en- titled as against the client to a general lien, but only for their agency in the particular cause. ^ § 377. Collusive settlements. — If the defendant's attorney pay over to the plaintiff the debt and costs recovered after notice from the plaintiff's attorney not to do so till his bill has been satisfied, the former is liable to pay over again to the latter the amount due for costs. ^ If a plaintiff compromise the debt and costs with the defendant, before the plaintiff's attorney has been paid, the court will not oblige the defendant to pay him unless he gave notice to the defendant not to settle until his bill should be paid.'' A plaintiff may, without consulting with his attorney, compromise an action with the defendant, and take on himself the paynient of the costs to the attorney, provided there be no fraudulent conspiracy to cheat the attorney of his costs.^ If the parties collusively settle the debt and costs upon an execution in order to defraud the plaintiff's attorney of his costs, the latter 1 Cowell i;. Simpson, 16 Ves. 275. 2 Stevenson II. Blakelook, 1 Maule & S. 534; Oxenham v. EsdaiUe, 3 Barn. & C. 225; 2 Younge & J. 493; Baleh v. Symes, 1 Turn. & E. 87. '< Commerell v. Poyntou, 1 Swanst. 1; Creswell v. Byron, 14 Yes. 271; Ross v. Langhton, 1 Ves, 349; Merryweather v. Mellish, 13 Ves. 161. * Cowell V. Simpson, 16 Ves. 275; Gray v. Cockerel, 2 Atk. 144, 307; 3 Atk. 727. 5 Ward V. Hepple, 15 Ves. 297; 16 Ves. 164. 8 Reed v. Dupper, 6 Durn. &'E. 361. ' AVelsli V. Hole, 1 Doug. 238. * Chapman v. Haw, 1 Taunt. 341. § 378 LIABILITY OF CLIENT TO ATTORNEY. 623' cannot sue a second execution on the same judgment to obtain his costs, but must apply to the court.^ Whenever there is an attempt on the part of the client to make a settlement behind the attorney's back, the attorney's lien will be protected where the party making the settlement agrees to pay the costs of the adversary's attorney ; ^ and so whenever the settlement is made eollusively by the parties in the absence of the attorney, with an evident design to defraud him of his costs, whether the action sound in tort, or is upon a contract.^ And where the claim is assigned to a third person in fraud of the attorney's rights.* But where an attorney, without a regular authority from the plaintiff, commenced an action of replevin, but the plaintiff with a knowledge of the proceedings suffered the cause to be carried to trial, but afterward, concerting with defendant, entered up satisfaction on the record without securing to the attorney his costs, the court refused to vacate the entry of satisfaction.^ Where there was a bill of discovery in aid of a defense at law, and an injunction was obtained on terms of paying the money into court, and the defendant afterward succeeded at law, it was held that a solicitor in equity had a lien on the fund for the costs of the discovery ; but a great part of the business appear- ing to have been done by another solicitor, and his demand sat- • isfied, the court refused to extend the lien of the first solicitor beyond the costs actually incurred by him.^ § 378. Remedies on the lien. — It sems, in England, that the solicitor cannot actively enforce his lien on papers. He can only hold them, and if the client does not need them the lien appears to be of little practical utility.' But where he has ex- pended costs, and the client discharges him, his lien extends to 1 Graves v. Eades, 1 Marsh. 113; 5 Taunt. 429. See Swain v. Senate, 2 New Kep. 99; Toms ». Powell, 6 Esp. 40; Charlwood v. Berridge, 1 Esp. 345. 2 Hall V. Ayer, 9 Abb.-Pr, 220.- 3 McKenzie v. Bljodes, 13 Abb. Pr. 337; Eaaquiu v. Knickerbocker Stage Co., 21 How. Pr. 293; Richardson v. Brooklyn City, 24 Ibid. 321; Fox v. Fox, 24 Ibid. 409. 4 Cregier v. Clieesebrough, 25 How. Pr. 200. 5 Abbott V. Rice, 3 Bing. 132. 6 Irving V. Viana, 2 Yonnge & J. 70. T Sozon u. Holland, 4 Myl. & 0. 354. 624 LIABILITY OF CLIENT TO ATTORNEY. § 379 refusing the use of the papers to the client or his next solicitor ; ■•■ but it is otherwise if he withdraws himself, because then he is bound to give the client the use of the papers, though his lien, useless as It is, theoretically continues.^ The rule is thus laid down : ^ " If a client discharges his solicitor, the court does not take the papers from the latter, unless upon payment of his bilL If, on the other hand, the solicitor discharges himself, then, ac- cording to the decision in Heslop v. Metcalfe,* the court will compel him to give over the papers to the new solicitor, saving his lien upon them. There was a doubt, before that case, whether the rule was to allow a new solicitor, on behalf of his client, to inspect papers in the hands of the old solicitor, and take copies of them, or whether the papers were to be delivered over. Lord Cottenham, in that case, made an observation, the force of which we must feel, that ' the only effect of obliging the new solicitor to take copies is to put the client to expense, without any benefit to the old solicitor, for when the copies are taken nothing more is wanted. The case of papers in a cause is different from that of deeds, which have an intrinsic nature that cannot be imparted to copies.' " It is said that in an action of trover a plea of not guilty does not enable the defendant to give evidence of a lien.^ But in trover, where the plaintiff must have a right of property and a right to the immediate possession, a plea of " not possessed" has been held a proper plea to let in this defense, a right of lien being a right to refuse possession.^ § 379. Equitable interference to protect the lien. — If the client settles the case so as to deprive the attorney of his costs, it is clear that the latter has redress against the former ; and if the attorney notify the opposite party that he has an un- satisfied claim, he can recover from such party the amount of iLord V. "Wormelighton, Jao. 580; Bozon v. Bolland, supra; Newton v. Har- land, 4 Scott N. S. 769. 2 Heslop V. Metcalfe, SMylne & C. 159; Colegrave v. Manley, 3 Ibid. 183; Ores- well V. Byron, 14 Ves. 271. In case of death of client, see Eoss v. Laugliton, 1 Ves. & B. 349. ^'Griffiths V. Griffiths, 2 Hare, 590. 4 3Mylne&C.183. 6 White V. Teal, 12 Ad. & E. 106. 6 Owen V. Knight. 4 Bing. N. C. 54. § 379 LIABILITY OF CLIENT TO ATT'OENEY. 625 his claim, where the settlement was collusive. ^ He has, how- ever, no such right if he give no such notice.^ But the right exists, though the notice be informal and constructive.^ Where the judgment is for costs, the record is sufficient notice to all parties;* but an application on the part of the attorney to vacate satisfaction of judgment should be promptly made.^ While the courts reluctantly interfere, at the instance of attor- neys, to prevent parties amicably adjusting an action, the par- .ties will be prevented from defeating the attorney's claim for the costs of the action by private arrangements between them- selves.® When the collusive settlement is of record, the attorney may move to set it aside, or if the settlement be before judgment, it is said that he may treat it as a nullity and proceed with the suit.'^ But it must clearly appear that it is collusive.^ 1 Wharton on Agency, sec. 627; "Welsh v. Hole, 1 Doug. 237; Barker v. St. Quintlu, 12 Mees. & W. 440; Kelson ?;. WilsQn, 6 Bing. 568; Hart v. Chapman, 2 Aik. 162; Foot v. Tewksbury, 2 Vt. 97; Quimby «•. Quimby, 6 N. H. 79; Currier V. E. R. 37 N. H. 223; Martin v. Hawks, 15 T. R. 405; Powerti. Kent, 1 Cow. 172; Haight V. Holcomb, 16 How. Pr. 160, 173; Sherwood v. E. E. 12 How. Pr. 136; Dietz V. McCallum, 44 Ibid. 493; Rooney v. E. E. 18 N. Y. 368; MoGregorw. Corn- stock, 28 N. Y. 237; McKenzie v. Wardwell, 61 Me. 136; Hunt v. McClanahan, 1 Heisk. 503; Pleasants v. Kontrecht, 5 Heisk. 694. 2 Chapman v. How, 1 Taunt. 341; Graves v. Eades, 5 Taunt. 429; Matt v. Smith, 4 Barn. & Aid. 466; Walsh v. Hole, 1 Doug. 238; Barker v. St. Quintin, 12 Mees. & W. 440; Hough v. Edwards, 1 Hurl. & N. 171; Hawkuis k. Loyless, 39 Ga. 5; Green v. Exp. Co., 39 Ga. 20; Finder v. Morris, 3 Oaines, 165; People v. Harden- burgh, 8 T. E. 335; McDowell v. E. E. 4 Bosw. 670. 3 Abell V. Potts, 3 Esp. 242; Young v. Dearborn, 7 Fost. 324; Lake v. Ingham, 3 Vt. 158; Eeed v. Dupper, 6 Term Eep. 361; Cole v. Bennett, 6 Price, 16. ■1 Welsh V. Hole, 1 Doug. 238; Wright v. Cobleigh, 1 Fost. 339; Eead v. Dup- per, 6 T. E. 361; McGregor v. Oomstock, 28 N. Y. 237; Haight v. Holcomb, 16 How. Pr. 173; Lesher v. Eoessner, 3 Hun, 217; Sherwood^;. R. R. 12 How. Pr. 136. 5 Quimby v. Quimby, 6 K. H. 79. 6 Moore v. Angell, 11 Jur. 485. See Ex parte Hart, 1 Barn. & Ad. 666 ; 1 Dowl. 324- Quested v. Callis, 10 Mees. & W. 18; 1 Dowl. N. S. 888; 11 Law J. N. S. Ex. 345; Clark v. Smith, IDowl. & L. 960; 6 M. & G. 1051; 13 Law J. N. S. C. P. 97. By the 23 and 24 Vict., chap, 127, sec. 28, " All conveyances and acts operating to defeat" such charge shall, unless made to a.l}onafide purchaser for value without notice, be absolutely void against such charge. T Jones « Bonner, 2 Ex. 229; Rooney v. R. E. 18 N. Y. 368; Talcott v. Bron- son, 4 Paige, 501; Swain v. Senate, 5 Bos. & P. 99. As to bona fide settlements before judgment and without notice, see Simmons v. Almy, 103 Mass. 33. 8 Jones «. Bonner, 2 Ex. 229; Waight v. Burrows, 3 Com. B. 343; Francis v. Webb 7 Com B.731; Jordan «. Hunt, 3 Dowl. P. C. 666; Nelson v. Wilson, 6 Bing 568; Clark v. Smith, 1 Dowl. & L. 960; Henchy v. Chicago, 41 111. 136; Sul- livan V. Pearson, 19 L. T. N. S. 430; L. R. 4 Q. B. 153; 9 Best & Smith, 960. See, A. & C— 40. 626 LIABILITY OF CLIENT TO ATTORNEY. § 380 § 380. Right of set-off as affecting the lien. — The right of set-off may prevail so as to interfere with a solicitor's lien upon the debt recovered ; but vvrher6 other claims, arising out of different transactions, and which could not have been a legal or equitable set-off in that suit, exist between the parties, the court will not divest the lien of the solicitor, which has already attached on the amount recovered, for the costs of that particu- lar litigation. 1 A verdict in favor of a plaintiff having been given, a rule nisi was obtained by the defendant for a new trial. On the hearing, the court, by consent, ordered that the cause, and an- other cause between the same parties in a county court, should be referred to an arbitrator, the costs of each cause to abide the event, the costs of the reference and of the award to be in the discretion of the arbitrator. The arbitrator made his award in the cause in favor of the defendant, and in the cause in the county court in favor of the plaintiff, with damages, and gave the plaintiff the costs of the reference, and divided the costs of the award between the parties. The plaintiff took up the award. The court held, on a rule to set off against the money and costs payable to the plaintiff the costs of the cause, and the rule to which the defendant was entitled, that the defendant, not being entitled to such costs under the award, could not set off the several costs to the prejudice of the attorney's lien.^ Yet, on the other hand, it has been held in an action of tres- pass, where a verdict was found against one defendant, but in favor of another, that the costs might be set off, notwithstand- ing the effect of it was to deprive the attorney of his lien.^ And so a successful defendant's costs have been set off against the plaintiff's, without regard to the lien of the plaintiff's attorney, where it was shown that the latter was the real party in inter- as to suits for unliquidated damages, Torrey ti. Payne, 1 Barn. & Adol. 660; Hutchinson v. Pettis, 18 Vt. 614; People v. Tioga C. P. 19 Wend. 73. 1 -Carter v. Bennett, 6 Fla. 214; Calvert 'i\ Coxe, 1 Gill, 95. It is said that the right of setting off one judgment against another is not a legal right, but is given by the equitable jurisdiction of a court with reference to all the circumstances of the transaction, and will not be allowed so as to de- feat either the attorney's lien for costs or the right acquired by an assignee. (Simpson v. Lamb, 7 El. & B. 84; 3 Jur. N. S. 412: 20 Law J. Q. B. 121.) 2 Little V. Philpotts, 8 .Jur. N. S. 1175; 31 Law J. Q. B. 125. 8 George v. Elston, 1 Scott, 518; 1 Hodges, 63. § 380 LIABILITY OF CLIENT TO ATTORNEY. 627 est.i In another case the court made absolute without costs a rule for setting off the costs of a successful defendant against the damages and costs awarded for the plaintiff against the other defendant, disregarding the attorney's lien.^ Interlocutory costs have been set off against final costs in the same cause without reference to the lien, and where one judgment is set off against another the Hen does not extend beyond costs in the particular cause.^ An attorney who obtains a judgment has a lien upon it for the amount of his costs/ And if the judgment be solely for costs, the record is notice to the judgment-debtor of the attorney's rights, and payment to the party, being in fraud of the attorney, is no defense.^ If, after the verdict of a jury or the report of a- referee in an action of tort, the successful party assign to his attorney the verdict or report, and the judgment to be entered thereon in payment for his services, such an assignment is valid, and will be upheld.^ One judgment will not be set off against another while an appeal is pending, and on a motion to set off one judgment against another the court will protect the lien of the attorneyJ But in an action to compel a set-off, the legal right overrides an equitable lien where there is no assignment to the attorney before judgment, or no agreement that the attorney shall have the costs as a recompense for his services.^ Such an agreement before recovery of judgment being valid and binding,^ the lien covers any sum which it is agreed the attorney shall receive out of the recovery beyond the costs. ^^ The set-off by the opposite party, if protected by statute, is superior to the charging lien." Such appeared to be the weight 1 Pocock V. O'Shannessy, 6 Ad. & E. 807. 2 Eawlings v. Sewell, 7 Scott, 231. 8 Ibid. ; Halliday v. Lawes, i Scott, 475; 3 Hodges, 130. * McGregor v. Comstock, 28 N. Y. 237. 5 Ibid. 6 Roberts v. Carter, 38 N. Y. 107; Mackey v. Mackey, 43 Barb. 58. ' De Piganiere v. Young, 2 Eobt. 671; Purchase v. Bellows, 16 Abb. Pr. 105. 8 De Figaniere v. Young, 2 Eobt. 670; Martin i\ Kanbouse, 17 How. Pr. 146; NicboU V. NichoU, 16 AVend. 445; Eobbins v. Alexander, 11 How. Pr, 100. See Mercer v. Graves, Law E. 7 Q.' B. 499; S. C. 2 Moak. Bng. E. 618. 9 Ely V. Cooke, 28 N. Y. 365. 3« Eooney v. Second Avenue, 18 N. Y. 368; Fitob v. Gardinier, 2 Keyes, 516; Benedict v. Stuart, 23 Barb. 420; Fogerty v. Jordan, 2 Eobt. 325. 11 Vaughn v. Davies, 2 H. Black. 440; Bawtree v. Watson, 3 Myles & Cr. 713. See Mitchell v. Oldfield, 4 T. R. 124; Moreland v. Pasley, 2 H. Black. 441; Ean- 628 LIABILITY OF CLIENT TO ATTORNEY. § 381 of authority in England, though subsequently, by rules of sev- eral of the courts of common law, no set-off between the par- ties to the suit can prejudice the attorney's claim to costs in such suit. But where a statute provides that a set-off shall extin- guish a debt, then, when the debt is thus extinguished, there is nothing on which the attorney's lien can act.-' In England, parties have been allowed to deduct or set off the costs or debt and costs in one action against those in another. The right of set-off has been sometimes subject to the lien of the attorney for his bill of costs, and the defendant has not been al- lowed to set off his debt and costs in one action against those in another, until the attorney's bill for business done in the cause wherein he was concerned be first discharged. In other cases, the lien is held to be subject to the equitable claims that exist between the parties to the cause. And the Court of Chancery will not interpose the lien further than upon the clear balance which is the result of the equity between the parties.^ § 381. Appropriation of payments on account. — An attorney who has several demands against his client, some of die V. Fuller, 6 T. E. 456; Glaister v. Heaver, 8 T. R. 70; Middleton v. Hill, I Mylne & S. 240; 1 Dowl. & R. 168. 1 2 Kent's Com. 641; "Walker v. Sargeant, 14 Vt. 247; Porter v. Lane, 8 Johns. 357; Mohawk Bank v. Burrows, 6 Johns. Oh. 317; NicoU v. Nicoll, 16 AVend. 446: Benjamin v. Benjamin, 17 Conn. 110; Firmirick t>. Bovee, 4 Thomp. & C. 98; Tillman v. Reynolds, 48 Ala. 365; Neil v. Staten, 7 Heisk. 290; Mitchell v. Mil- lioan, 11 Kans. 617. 2 Taylor v. Popham, 15 Ves. 75; 2 New Rep. 102; Tidd's Pr. 991, 339, 40, 9912. See, also, Randall v. Fuller, 6 Durn. & E. 456; Glaister v. Hewer, 8 Ibid. 69; Mid- dleton V. Hill, 1 Maule & S. 240; Aspinwall v. Stamp, 4 Dowl . & R. 716; 3 Barn. & C. 108; Harrisonti. Bainbridge, 4 Dowl. & R. 363; 2 Barn. & C. 800; Nunez v. Modigliani, 1 H. Black. 217; Hall v. Ody, 2 Bos. & P. 28; Mitchell v. Oldiield, 4 Durn. & E. 123; Van Sandau v. Burt, 1 Dowl. & R. 168; Stevens w. Weston, 5 Dowl. &R. 399; 3 Barn. & C. 535; Howell D.Harding, 8 East, 362; Smith ;,. Brocklesbury, 1 Anst. 61; Gobbitt v. Chaytor, 1 Anst. 279; Murphy v. Cunning- ham, 1 Anst. 271; Gifford v. GifEord, Forrest, 109; Bmdin v. Darlin, 1 New Rep. 22; Sohoolet). Noble, 1 H. Black. 23; Brown v. Sayce, 4 Taunt. 320; Lomas v. Mellor, 5 Moore, 95. In Kentucky, the lien of the attorney attaches at the commencement of the suit, and cannot be affected by subsequently acquired set-offs. (Stephens v. Farrar, 4 Bush, 13; Robertson v. Shutt, 9 Bush, 660. See generally, as to the charging lien, Wylie v. Cox, 15 How. 415; In re Paschal, 10 "Wall, 483; Patten v. Wilson, 34 Pa. 299. The following cases deny the charging lien for fees : Forsythe V. Beveridge, 52 111. 268; Ex parte Syle, 1 Cal. 331; Mansfield v. Borland, 2 Oal. 331. The following cases deny the right of set-ofE: Stratton v. Hussey, 02 Me. 288; Currier v. E. E. 37 N, H. 223; Johnson v. Ballard, 44 Ind. 270; Boyerv. Clark, :i Neb. iri; Cnrter r. Davis, 8 Fla. 183.) § 382 LIABILITY OF CLIENT TO ATTORNEY. 629 which are barred by the Statute of Limitations, has no right to appropriate, in payment of the demands so barred, a sum re- ceived by him on account of his client, for damages recovered in an action.^ And so it is held that where directors of a com- pany carry on business unauthorized by the deed of settlement, and moneys have been paid by the company to the solicitors on account of costs generally, the solicitors have no right ^os^ litem motam to appropriate such payments to the costs incurred in respect of the unauthorized business, but, on the contrary, the court will appropriate the payments to the costs which the com- pany was liable to pay.^ § 382. Settlements between the parties as affecting the lien.— Provided there is no fraudulent conspiracy to cheat the attorney out of his costs, a plaintiff may, without consulting his attorney, compromise an action with a defendant, and take upon himself the payment of the costs to the attorney.^ The attor- ney of the defendant has no such interest in the suit as to pre- vent the parties from compromising it without his consent.* And if a plaintiff compromises the debt and costs with the de- fendant before the plaintiff's attorney has been paid, the court will not oblige the defendant to pay him unless he gave notice to the defendant not to settle with the plaintiff till his bill should be paid.'' But if the defendant's attorney pays to the plaintiff the debt and costs recovered, after notice from the plaintiff's at- torney not to do so till his bill has been first satisfied, the for- mer may be liable to pay over again to the latter the amoiint of his lien on the debt.^ It is said that where the damages sought to be recovered iu an action are unliquidated, the parties may com- promise without regard to the plaintiff's attorney's claim to costs." "Where a plaintiff and defendant collude in the settlement of an action, in order to deprive the plaintiff's attorney of his costs, and a bill for debt and costs is given by the defendant in fur- 1 Waller v. Lacey, 1 Man. & G. 54; 1 Scott N. E. 186. 2 Phoenix Life Insurance Co., In re, 1 H. & M. 433. 8 Chapman v. Hare, 1 Taunt. 341; Jordan v. Hunt, 1 Gale, 159; Nelson ;•. Wil- son, 4 Moore & P. 385; 6 Bing. 568. 4 Quested v. Callis, 10 Mees. & W. 18; 6 Jur. 512. 6 Welsh V. Hole, 1 Doug. 238. 6 Bead v. Duppa, 6 Term Kep. 361. ' Ex parte Hart, 1 Barn. & Ad. 660. 630 LIABILITY OF CLIENT TO ATTORNEY. § 383 therance of that collusion, the court will compel the delivery up of that bill.i Where there are cross-actions, and the plaintiff in each has obtained judgment, it is competent for the parties to come to a honajide settlement of the matter between themselves, although the consequence of such settlement may be, that the attorney for one party will lose his lien for his costs. But if such settlement is come to by collusion and fraud, for the pur- pose of depriving the attorney of his costs, he has a right to call for the interference of the court.^ A plaintiff who had obtained judgment for his costs, in collusion with the defendant, in order to defeat the lien of the plaintiff's attorney, gave him and the sheriff notice not to execute any process on pain of being treated as trespassers. It was held that a judge had power, in the exercise of the equitable interference of the court, to order that the plaintiff " or the defendant " pay the attorney the costs.^ It is said that even where a pauper plaintiff settles the action behind the back of his attorney, it is entirely a question for the discretion of the court, under the particular circumstances of the transaction, whether they will interfere and set aside the proceedings.* And the court will not interfere, even in the case of a plaintiff suing m/brma^aw^e/'ts, to prevent effect being given to a settlement between the parties, although it be evident that the attorney will lose his costs, unless the settlement is clearly collusive or fraudulent.^ § 383. Liens for partnership debts, etc. — An attorney with whom title-deeds, the property of a member of a firm, have been deposited by that member,, in the course of professional business done on his private account, has no lien on them for a debt due from the partnership.'' Nor does an attorney acquire a lien for costs due to himself solely, upon documents which 1 Gould V. Davis, 1 Cromp. & J. 415 ; 1 Tyrw. 380, 2 Brunsdeu v. Allard, 2 El. & E. 19; 5 Jur. N. S. 59(i; 28 Law J. Q. B. 306; 7 Week. E. 581; 33 Law T. 220. 3 Ex parte Games, 3 Hurl. & 0. 294. * Jones V. Bonner, 3 Ex. 230; 5 Dowl. & L. 718; 17 Law J. Ex, 343. 5 Francis y. Webb, 7 0. B. 731; S. P., Moore v. Angell, 11 Jur. 455. A release of all demands from the plaintiff to the defendant will not deprive the plaintiff's attorney of his lien upoii the costs of an action a^varded iu favor of the plaintiff. (Gifford V. Gifford, Forrest, 109; Ormerod v. Tate, 1 East, 404.) 6 Turner v. Deane, 6 Dowl. & L. 669; 3 Ex. 836; 18 Law J. Ex. 343; In re For- shaw, 16 Sim. 121, § 384 LIABILITY OF CLIENT TO ATTORNEY. 631 came into the joint possession of himself and his partner or partners, but he does not lose his lien for such costs upon doc- uments which, having come into his own possession, are after- ward continued in the possession of himself and his partners.^ § 384. Lien on sums awarded and on judgment money. — An attorney has a lien upon a sum awarded in favor of his client, as well as if recovered by judgment ; and if, after notice to the defendant, the latter pays it over to the plaintiff, the plaintiff's attorney may compel a repayment of it to himself.^ A builder, and an uncertificated bankrupt, sued for a balance due to him for repairs, and was nonsuited ; the cause was re- ferred, and the arbitrator found a sum due to the plaintiif . The court held that his attorney had a claim, as against the assignees, to the amount of his lien on the award, for the costs of the action and of the award.^ An attorney has a lien for his bill of costs on money levied by the sheriff under an execution on a judgment recovered by his client, and is entitled to have it paid over to him, notwithstand- ing the sheriff has had notice from the party against whom the execution issued, to retain the money in his hands.* But where a defendant is entitled against a plaintiff to be released from a verdict obtained against him, the court will not abstain from in- terfering, on the ground of the lien of the plaintiff's attorney "upon the verdict for his costs.^ ' Pelly V. Wathen, 7 Hare, 351; 14 Jur. 9; 18 Law J. Ch. 281. 2 Ormerod v. Tate, 1 East, 464; S. P. Cowell v. Betteley, 4 Moore & S. 265; 10 Bing. 432. 3 Jones V. Tumbull, 2 Mees. & W. 601; M. & H. 106; 1 Jur. 638. * GriflSn v. Eyles, 1 H. Black. 122. 6 Symons v. Blake, 2 Cromp.'M. & R. 41G; 1 Gale, 182. TABLE OF CASES. TABLE or CASES. A. Abbe V. Eood, 6 McLean, 106, pp. 397, 399, 411. Abbey v. Fetch, 1 Younge & C. Ch. 258, pp. 445, 457, 468. Abell V. Potts, 3 Bsp. 242, p. 625. Abbott V. Duttou, 44 Vt. 546, pp. 328, 343. V. Eice, 3 Bing. 132; 2 Paige, 276, pp. 368, 609, 623, V. Zeigler. 9 Ind. 511, p. 218. Aokermau v. Ackerman, 14 Abb. Pr. 229, p. 606. Adams v. Bank, 23 How. Pr. 45, pp. 425, 426. V. Claxton, 6 Ves. 226, p. 456. V. Bank, 36 N. Y. 255, p. 579. V. Fort Plain Bank, 23 How. Pr. 58, p. 415. V. Fox, 40 Barb. 442, p. 457. V. Hopkins, 5 Johns. 252, p. 234. V. Malkin, 3 Camp. ,540, p. 44. V. Robinson, 1 Rich. 462, pp. 375, 378, V. Roller, 35 Tex. 711, p. 397. V. Stevens, 26 A\'end. 452, p. 552. V. Woods, 8 Cal. 306, p. 569. Adamson v. Evitt, 2 Russ, & M. 66, p. 455. Addington ?•. Appleton, 2 Camp. 410, pp. 135, 178. Aikin v. Kilburne, 27 Me. 252, p. 266. Ailway v. Burrows, Doug. 363, p. 203. Aitkin, In re, 4 Barn. & Aid. 47, pp. 133, 134. 138, 174. Albany Bank v. Schemerhorn, 9 Paige, 372, p. 135. Aldis V. Gardner, 1 Car. & K. 564. pp. 505, 570. Aldrich v. Brown, 103 Mass. 527, p. 554. V. Kenney, 4 Conn. 380, p. 356. Alexander v. Anderson, 6 Beav. 405, p. 135. V. Carpenter, 3 Denio, 266, p. 233. Aleyer v. Sexton, 2 Stark. 274, p. 299. Alger V. Hefford, 1 Taunt. 38, pp. 431, 621. Allaire v. Ouland, 2 Johns. Cas. 52, p. 202. AUaway v. Duncan, 12 L. T. N. S. 264, p. 240. Allcorn v. Butler, 9 Tex. 56, p. 600. Alleley v. Colley, Cro. Jac. 695, pp. 337, 363, 368. Allen, Adams & Co. v. Harrison, 30 Vt. 219, p. 285. Allen V. Clark, 1 N. R. 358, pp. 483, 492, 608. 518, 520, 528. V. Green, 1 Bail. 448, pp. 345, ;552. V. Harmon, 30 Vt. 219, p. 318. V. McCalla, 25 Iowa, 464, p. 407. V. Murphy, 9 Ir. L. JR. 305, p. 539. V. Rayden, 43 Law J. C. P. 206, p. 289. V. Stone, 10 Barb. 547, p. 364. Allis V. Day, 14 Minn. 516, p. 228. Allison V. Rayner, 7 Barn. & C. 441, pp. 494, 504. Alton V. Gilmanton, 2N. H. 249, pp. 376, 381, 390, 509, 520. Alspaugh V. Jones, 64 N. C. 29, pp. 358, 376, 403. Alwood V. Mansfield, 59 111. 496, pp. 457, 468. Ambrose n. McDonald, S. C. Cal. Apl. '78, p. .397. V. Rose, Skin. 217; 2 Show. 421, pp. 559,560, 562,563. American Ins. Co. v. Oakly, 9 Paige, 496, pp. 178, 335. Ames V. Gilman, 10 Met. 239, p. 549. V. Webbers, 10 Wend. 576; S. C. 11 Wend. 186, pp. 387, 406. Amey c. Long, 9 East, 473, p. 293. Amory v. Hamilton, 17 Mass. 109, p. 419. Anan v. Stoiit, 42 Pa. 1.14, p. 467. Anderson's Case, 1 IjCv. 249, p. 197. Anderson v. Boynton, 1 D. & L. 26; 13 Q. B. 308: 14 Jur. 14; 19 Law J. Q. B. 42. pp. .331, 643. Anderson t). May, 2 Bos. & P. 2.37; 3 Esp. 167, pp. 544, 563. V. Passmau, 7 Car. & P. 193', pp. 172, 193. IK Radcliffe, El. B. &B.805- 817, p. 579. V. Rome, 54 N. Y. 335, p. 406. r. Sutton, 2 Duval, 480, pp. 343, 351. V. Watson, 3 Car. & P. 214, pp. 237, 368. Andrew, In re, 7 Hurl. & N. 87 ; 30 Law J. Ex. 403, pp. 171, 539. Andrew v. Hawley, 23 Law J. Ex. 333, pp. 518, 523. 636 TABLE OF CASES. Andrew v. Hawley, 26 Law J. Ex. 323, p. 241. Andrews v. Morse, 12 Conn. 444, p. GIO. V. Solomon, 1 Peters C. C. 356, pp. 291, 617. Annesley v. Anglesea, 17 How. St. Tr. 1139, pp. 253, 284, 292, 308, 319. Anon. 5 Barn. & Aid. 1088, p. 154. 22 Wend. fi56, pp. 140, 152. 1 Wend. 108, p. 50. 9 W. K. 639, p. 87. V. Sexton, 1 Dowl. 180, p. 82. 1 Chit. 129; 2 Id. 36, p. 139. Appleton (.'. Binks, 5 East, 148, p. 235. Arden v. Patterson, 5 Johns. Ch. 44, pp. 459, 465, 587. V. Tucker, 4 Barn. & Adol. 815, p. 506. Ardin v. Tucker, 1 Moody & R. 191; S. C. 5 Car. & P. 258, pp. 557, 560. Armington's Case, Palmer. 403, p. 197. Armstrong v. Craig, 18 Barb. 387, p. 493. V. Jordon, 2 Stark. Bv. 107, p. 244. V. King, 8 Dowl. O. S. 297, p. 432. V. Smith, 3 Blackf. 251, p. 513. Arnolds. Mayor, 5 Scott N. S. 741; 4 Man. & 6. 860: S. C. 12 Law J. N. S. C. B. 97; 2 Dowl. N. S. 574, p. 329. Arnold v. Poole, 5 Scott N. E. 741; 2 D, N. S. 574; 4 M. &. S. 860; 7 Jur. 653; 12 Law J. Com. P. 97, p. 334. Arnold v. Robertson, 3 Daly , 298, p. 517. Arnottj). Webb, 1 Dill. 362, pp. 353, 381. Arrington v. Sneed, 18 Tex. 135, pp. 430, 557, 571. Ash V. Parkinson, 5 Nev. 15, p. 289. Ashbourne v. Price, D. & E. N. P. C. 48, p. 393. A.shford v. Price, 3 Stark, N. P. C. 185, pp. 570, 589. Ashley ik Brown, 1 Lown M. & P. 545; 15 Jur. 399; 19 Law J. Q. B. 477, p. 438. Aspinwall, In re, 7 Ben. 433, p. 269. Aspinwall v. Stamp, 4 Dowl. & E. 716; 3 Barn & C. 108, p. 628. Atcheson v. Madock, Peake, 163, pp. 471, 493, 501. Atkins V. , 1 Chit. 63, p. 203. Atkinson v. Atkinson, 2 Adams, 469, p. 287. I,. Mackreth, 2 Law E. Eq, 570, p. 524, Attorney's License, 1 Zab. 345, p. 153. Aubrey v. Popkins, Dick. 403, p. 547. Austin's Case, 5 Eawle, 1111, pp. 81, 146, 153. Austin «. Chambers, 6 Clark & P. 1, p. 456. Austin V. Nelson, 11 Mo. 192, p. 485. V. Vesey, Cary, 89, p. 253. Averill v. Williams, 4 Denio, 295, p. 414. Avery v. Long, 9 East, 481, p. 320. V. Eoe, 6 Dowl. 528; 3 Barb. Ch. 528, p. 298. Ayrault v. Chamberlain, 26 Barb. 83, p. 506. Ayre v. Craven, 2 Ad. & E. 2, p. 245. Babcock v. Brown, 25 Vt. 558, p. 485. Baber v. Harris, 2 W. W. & H. 53, p. 377. V. Harris, 7 D. P. C. 589, p. 173. Backus V. Bysou, 4 Mich. 5.35, pp. 587, 590. Bach V. Ballard, 13 La. An. 487, p. 426. V. Ballard, 19 La. An. 487, p. 437. Bacon v. Hart, 1 Black. 38, p. 439. V. Wayne Co., 1 Mich. 461, p. 324. Bacon's Case, 1 La. 146, p. 325. Bailey v. Birchall, 2 Hem. & M. 371; 11 Jur. N. S. 57, p. 612. V. Buckland, 5 Dowl. & L. 115, p. 139. V. Jones, 1 Chit. 744, pp. 156, 174. Baillie's Case, 21 How. St. Tr. pp. 341, 358, 408, 315. Baird v. Ratcliff, 10 Tex. 81, p. 548. V. Eatcliff, 10 Cal. 640, p. 570. Baker v. Arnold, 1 Caines, 258, pp. 307, 301. V. Black, 8 Law J. Ex. 393, p. 418, V. Commonwealth, 10 Bush, 592, pp. 150, 155. V. Cook, 11 Mass. 236, p. 610. V. Louder, 42 Law J. Ch. 113, p. 489. V, Merryweather, 2 Car. & K. 737, pp. 556, 559. V. Stonebroker, 34 Mo. 175, p. 355. Bakie v. Chandler, 3 Camp. 17, pp. 502, 519. Balbi V. Duret, 3 Edw. 418, p. 438. Balch V. Svmes, 1 Turn. & E. 192, pp. 61.5, 622. V. Syraes, 1 Turn & E. 87, pp. 613, 616, 618, 621. Baldwin v. Carleton, 15 La. 395, p. 577. V. Latson, 2 Barb. Ch. 306, p. 221. ! . Latson, 2 Barb. Ch. 307, p. 135. Baley, Ex parte, 9 Barn. & Cr. 691, p. 173. Ball, In re, 8 Law E. Com. P. 104, p. 160. Ball V. Leonard, 24 111. 146, p. 386. Ballard v. Carr, 48 Cal. 74, p. 452. Balme v. Paver. 1 Jacob, 305, p. 548. Balsbaugh v. Frazier, 19 Pa. 95, pp. 195, 548, 549. Baltzall i\ Nosier, 356. Bands v. Bodiner, Carthew, 377, p. 205. Bankaid r. Baltimore E. E. Co., 39 Md. 197, p. 211. Bantree v. Watson, 2 Keen, 713, p. 609. Bank of Hindustan, In re. 3 Law K. Ch. 125, p. 609. Bank of Utica b. Mersereau, 3 Barb. Ch. 596, pp. 265, 266, 287. Bauksr.Cage, lHow.(Miss.)293, p. 150. TABLE or CASES. 637 Banks v. Robb, 14 Brewst. 106, p. 384. Bank v. French's Executrix, 1 Cranch 0. C. 221, p. 278. V. Eisley, 4 Denio, 480, p. 395. *. Govan, 18 Miss. 333, p. 412. V. Evans, 18 Mi&s. 10 Smedes & M. 35, p. 414. V. Mersereau, 3 Barb. Cli. 528, pp. 257, 304, 306, 307. Bank of Conn. v. Bank of Buffalo, 6 Paige, 497, p. 347. Banyard, Ex parte, 10 Law E. C P 638, p. 96. Barber v. Palmer, 6 Burn. & B. 524 : 8 Ibid. 395, p. 203. Barker v. St. Quentin, 12 Mees. & W. 461, p. 609. V. St. Quentin, 12 Mees. & W 440, p. 625. Bargaddie Coal Co. v. Wark, 3 Macq. S. C. 688, p. 294. Barker v. Kuhn, 38 Iowa, 395, pp. 258, 288. Baron v. Martwell, 9 Dowl. & E. 390, p. 175. ^ Barker's Case, 49 N. H. 195, p. 156, Barker v. Company, SThomp. & C. 328, p. 574. V. Butler, 2 W. Black. 780; Anon. Lofft. 545, pp. 135, 181, 486, 488. V. Bray ham, 3 Wils. 368; 2 "W. Black. 866, pp. 237, 238, 240, 241. V. Dacie, 6 Ves. 681, p. 558. V. York, 3 La. An. 90, p. 566. V. Hibberd, 54 N. H. 539; S. C. 20 Am. R. 166, p. 573. Barnard v. Gostling, 1 New Eep. 245, p. 97. Barnes, Ex parte, 2 B. C. R. 156, p. 97. Barry v. Whitney, 3 Sand. 696, p. 465. Barrett v. Bamber, 9 Phila. 202, pp. 454, 457. Bartholomew v. Langsdale, 35lnd. 278, p. 560. Barns v. Strong, 1 Jones Eq. 100, p. 164. Barnesley v. Powell, Anstr. 102, pp. 606, 607, 608, 610, 612. Earner v. Harris, 7 Cush. 576, pp. 291, 314. Baruum v. Kellamy, 4 McLean, 87, p. 382. Barret ». Third Avenue, 45 N. Y. 628, pp. 379, 397. Barton v. Baynes, 1 Barnes, 18, p. 619. Barradaile v. Nelson, 2 Com. Law Rep. 740; 14 Com. B. 655; 18 Jur. 431; 23 Law J. Com. P. 159, p. 547. Bassett V. Giblett, 2 D. P. C. 650, p. 547. Baster, In re, 7 Dowl. & L. 296, p. 641. Basber, In re, 6 Eng. L. & Eq. 368, p. 242. Bassford w. Blakesley, 6 Beav. 131, p. 308. Batchelor v. Ellis, 7 T. R. 337, pp. 260, 293, 424, 423, 431, 436. Bate V, Kinsev, 1 Cromp, M. & R. 38, p. 21. Bates V. Sturges, 6 Moore & S. 172 p 230. V. Pike, 9 Wis. 224, p. 377. V. Pilling, 6 Barn. & 0. 38, pp. 237, 238, 241, 243. Bateman, Ex parte, 6 Q. B. 853, pp. 40, 41, 50. Bateman, In re, 2 D. P. C. 161, pn 137 139. ^^ Bathgate v. Haskin, 59 N. Y. 533, pp. 424, 425, 426, 579. Bauter v. Levi, 1 Chit. 713, p. 219. Bawtree v. Watson, 3 Mvlne & C. 713 p. 627. Bayard v. McLane, 3 Harr. 127, pp. 649, 580, 587. Bayley, Ex parte, 9 Barn. & C. 436, p. 91. ^ Bayley v. Buckland, 1 W. H. & G. 1, pp. 362, 364, 365. V. Thompson,2Dovvl. 665,p. 99. Baylor v. Morrison, 2 Bibb. 103, p. 655. Bayliss v. Grout, 2 Mylne & K. 316, p 50. ^ Beard v. Ackermau, 5 Esp. 120, pp. 266, 273, 286, 294. Beardsley v. Root, 11 Johns. 464, pp. 376, 383. Beach t). Gregory, 2 Abb. Pr. 206, p. 438. Bemais v. Hey, 1 Dowl. & L. 661; 7 Jur. 1154; 13 Law J. Q. B. 28, p. 646. Beardslee v. Boyd, 37 Mo. 180, p. 513. Bebb, Ex parte, 3 Jur. 772, 24, p. 95. Beoher's Case, 8 Co. 586, p. 41. Beckwith v. Benner, 6 Car. & P. 681, pp. 277, 301, 319. Beck V. Lewin, 1 Tidd's Pr. 75, pp. 198, 203. Beckley v. Neiscomb, '24 N. H. 359, p. 347. Beck V. Mordaunt, 2 Bing. N. C. 140; 4 Dowl. 112, p. 562. Beckenden, Ex parte, 1 Har. & W. 193, p. 91. Beddook, Ex parte, 13 Week. R. 871, p. 87. Beer v. Ward, 1 Jacob. 77, pp. 287, 297, 436, 517. Beene v. State, 22 Ark. 157, pp. 141, 142, 146, 150, 155. Beekman !i. Platner, 15 Barb. 550, p. 564. Beeke v. Penu, 7 Car. & P. 397, p. 659. Beers v. Hendrickson, 45 JST. Y. 666, pp. 402, 410, 411, 413. Beeson v. Beeson, 9 Pa. 279, p. 285. Belamy ;i. French, Law R. 8 Ch. 918; S. C. 7 Moak's Eng. R. 471, pp. 605, 615. Bellew V. Russell, 1 Brad. & B. 96, p. 135. Bell V. Bell, 12 Pa. 235, p. 226. Bell V. Mason, 10 Vt. 509, pp. 229, 231, 447. Bell V. Ursury, 4 Litt. 334, pp. 347, 369. Bellew V. Russell, 1 Ball & B. 96, pp. 459, 463, 589. . Belcher o. Godered, 4 Com. B. 472, p. 179. Bellis, In re, 3 Ben. 386, p. 286. 638 TABLE OF CASES. Bell V. Gate, 1 Taunt. 162, p. 220. Bellow V. Russell, 1 Ball. & B, 104; 1 Madd. 314, p. 450. Beltzhoovert). Blaokstook, 3 Watts, 20, pp. 271, 285. Bendernagle v. Cooks, 19 Wend. 151, p. 436. Benedict v. Stewert, 23 Barb. 420, pp. 627, 580, 588. V. Smith, 10 Paige, 126, p. 411. Bennett v. Dean, 4 M. & G. 638, p. 540. Benjamin v. Caventry, 19 Wend. 853, p. 316. V. Benjamin, 17 Conn. 110, pp. 628, 610. Bennett, Ex parte, W. W. & D. 210, p. 91. Bentliall, Ex parte, 7 Scott N. E. 407, p. 96. Benson v. Whitfield, 4 McCord, 149, p. 230. Benson, In re, 10 Beav. 435, p. 91. , Bent V. Armstead, 2 Keep, 221, p. 449. Benton v. Craig, 2 Miss. 198, pp. 476, 485. V. Garcia, 3 Bsp.^149, p. 542. Bernard v. Winninffton,''l Chit. 188, p. 200. Berrie v. Howitt, 39 Law J. Oh. 119, p. 615. Berrian v. McLane, 1 Hoff. Ch. 424, pp. 451, 456, 466, 468. Berringt.on v. Phillips, 4 D. P. C. 578; 1 Gale, 404, p. 544. Berry v. Jenkins, 3 Bing. 423, pp. 220, 152. «. State, 10 Ga. 611, p. 211. V. Mullen, Irish Eep. 5 Eq. 368, pp. 396, 401. Berryman v. Wise, 4 Durn. & E. ,S66, pp. 499, 601. Berthold v. Fox, 21 Minn. 51, pp. 385, 415. Bertline v. Baldwin, 29 Ind. 16, p. 476. Bethel v. Carmack, 2 Md. Ch. 143, pp. 373, 375. Bevan v. Waters, Moody & M. 325, pp. 286, 294, 309. Bevins v. Hulme, 15 Mees. & W. 88; 3 Dowl. & L, 722; 15 Law J. Ex. 226, p. 423. Bibb V. Smith, 1 Dana, 582, pp. 441, 451, 465, 468, 469. Bicknell v. Dorion, 16 Pick. 978, p. 239. Biebinger v. Taylor, 64 Mo. 63, p. 485. Bierce v. Red Blufl Hotel Co., 31 Cal. 160, p. 473. Bigler v. Ruyher, 43 Ind. 112, p. 293. Bignold V. Bignold, 11 Ves. 328, p. 548. Billings, Ex parte, 2 Har. & W. 327, p. 100. Billings V. Cojjpack, 1 Ex. 15; 5 Dowl. & L. 126; 16 Law J. Ex. 265, p. 539. Bimeler v. Dawson, 4 Scam. 538, p. 350. Binghara v. Gardner, 3 Barb. 64, p. 522. Bird V. Lovelace, Car/, 88, p. 253. Birbeck v. Stafford, 14 Abb. Pr. 285; 23 Ho-yr. Pr. 236, pp. 2:52, 507, 234, 394, 418, 419. Bishop w. Garsia, 14 Abb. Pr. 229, N. S. 72, p. 616. V. Huggins, 1 Barnes, 31, p. 618. ■ V. Latimer, 4 L. T. N. S. 775, p. 248. V. Marsh, 8 Scott, 128, p. 197. V. Willis, 6 Beav. 83, p. 444. Bissel V, Briggs, 9 Mass. 462, p. 356. Black V. CreigMon, 2 Molloy, 652, p. 486. V. Hersch, 18 Ind. 342, pp. 510, 513 515 Blackburn v. Crawfords, 3 Wall. 176, pp. 302, 303. Blaikie v. Chandlers, 3 Camp. 17, pp. 483, 484. Blair v. Bromley, 5 Hare, 542; 2 Phill. 354; p. 487. V. Bromley, 16 Law J. Ch. 495, pp. 44, 381. Blake, In re, 3 El. & E. 34: 6 Jur. N. S. 1242; 2 L. T. N. S. 429; 30 Law J. Q, B. 32, pp. 135, 151, 187. Bland v. De Bough, 6 Com. B. 623: 4 Dowl. & L. 412, p. 540. Blank, Ex parte, 2 Dowl. O. S. 110, pp. 134, 136, 148, 150. Blank v. Barton, 2 Chit. 66, p. 184. V. Blank, 1 Vent. 197, p. 282. Blank, In re, 3 Kev. & P. 389, p. 180. Blank v. Jolland, 8 Ves. 72, pp. 487, 520. Blank, Matter of, 5 Barn. & Adol. • 1088, p. 180. Blank v. Moore, 1 Maule & S. 284, p. 249. V. Yates, 1 Dowl. & R. 9, p. 219. Bleakley, in re, 5 Paige, 311, pp. 419, ■ 420. Bledsoe v. White, 42 Tex. 130. p. 447. Blewit V. Marsden, 10 East, 237, p. 178. Bliss, In re, 9 Johns. 347, pp. 198, 201. Bliss V. Ottis, 1 Denio, 656, p. 233. Bloomer v. Bransome, 6 Dowl. P. C. 490, pp. 427, 429. Blundell v. Blundell, 1 Dowl. & R. 142; 5 Barn. & Aid. 533, p. 178. Bluuden v. Desarte, 2 Dru. & War. 405, pp. 612, 614, 621. Blunt, Ex parte, 2 W. Black: 764, pp. 87, 94. Blunt V. Haslop, 2 D. P. C. 982, p. 590. Board v. Brodhead, 44 How. Pr. 411, pp. 426, 428. V. Parker, 7 East 47, p. 203. Boardmau c. Sill, 1 Camp. 310, p. 621. V. Thompson, 25 Iowa, 487, p. 580. Bodenhan, Ex parte, 8 Ad. & E. 959, pp. 137, 139. Bodflsh V. Fox, 23 Mo. 94, p. 573. Bodurther v. Goodrich, 3 Gray, 511, p. ■ 360. Bogardus i. Livingstone, 7 Abb. Pr. 428, pp. 565, 568. V. Eichtmeyer, 3 Abb. Pr. 179, pp. 429, 4.30. Bogert V. Bogert, 2 Edw. Ch. 399, pp. 278. 284. TABLE OF CASES. 639 Bohanan u. Peterson, 9 "Wend. 503, pp. 177, 133, 150. Boissy u. Lacon, 10 La. An. 29, p. 226. Bolden v. Nioholay, 3 Jur. N. S. 884, p. 331. Bolton, In re, 9 Beav. 272, p. 476. Bolton V. Liverpool, 1 Mylne & K. 88, pp. 517, 254. V. Tate, 1 Swamat. 84, pp. 620, 428. Bonner, In re, 1 Nev. & M. 655 ; 4 Barn. & Adol. 811, pp. 175, 177. In re, 2 Marsb. 48, p. 93. Bonslield, Ex parte, 5 Jur. 772, p. 95. Booker v. Stinchaeld, 47 Me. 340, p. 234. Borkheim v. Company, 38 Cal. 623, p. 358. Borney v. Morrill, 57 Me. 368, p. 398. Borum v. Pouts, 15 Ind. 112, p. 293. Boston V. Craig, 2 Mo. 198, pp. 493, 497. V. Haynes, 33 Cal. 31, p. 478. Bottomley v. Usbome, Peaks Ad. Cas. 99, pp. 293, 297. Bougner v. Schohey, 4 Ind. 583, pp. 441, 516, 510, 513, 515. Boulden v. Hetel, 17 Serg, & E,. 312, p. 228. Boulogne v. Vautrine, Cowp. 828 ; S. C. 2 Doug. 467; p. 219. Bourdillon v. Roche, 27 L. J. Oh. 681, p. 381. Bourne v. Diggles, 2 Chit. 311, pp. 491, 499, 501, 522. Bouser v. Bradshaw, 4 Gift. 260; 9 Jur. N. S. 1048; 9 L. T. N. S. 195, p. 612. Bouther v. Johnson, 2 Browne (Pa. ) 17, p. 345. Bowie V. Hyde, 6 Barh. 392, p. 510. Bowles V. Stewart, 1 Sohoales & L. 227, p. 44.S. V. Senior, 8 Q. B. 677, p. 241. Bowling Green Bank v. Todd, 52 N. Y. 489, pp. 610, 615. Bowman v. Norton, 5 Car. & P. 177, pp. 291, :313. !), Tallman, 27 How, Pr. 212, pp. 480, 483, 490, 497, 503, 504, 50H, 466, 567, 577, 579. Bowyer «. Hoskins, 1 Younge & J. 199, p. 197. Boyd V. Stone, 5 Wis. 240, p. 437. Boydell v. Jones, 7 Dowl. P. 0. 210 ; 4 . Mees. & W. 446 ; 1 Horn. & H. 408, p. 247. Boyer v. Allen, 2 Barnes E. 42, p. 153. V. Clark, 3 Neb. 161, p. 628. Boyken v. Holden, 6 La. An. 120, pp. 345 371. Boylan «.' Whitney, 3 Ind. 140, p. 360. Box V. Barnaby, Hob. 117; Com. Dig. Atty. B. 14, pp. 40, 164, 589. Bozon V. BoUand, 4 Mylne & 0. 354,' pp. 611, 615, 623, 624. Brabant, Ex parte, 2 W. W. & H. 46, p. 100. ~Bva,cebjv. Dalton, 2 Strange, 705, p. 312. Brfickenbury v. Pell, 12 East, 588, p. 497. Brackenridge, In re, 1 Serg. & E. 187, pp. 81, 130. Brackenridge v. McFarland, Addis. 49,' ■ p. 548. Brackett v. Norton, 4 Conn. 517, pp. 556, 571, 374. V. Sears, 15 Mich. 244, pp. 556, 572, 578. Bracy v. Carter, 12 Ad. & E. 373, pp. 505, 506, 571. Bradford, Ex parte, 1 El. & E. 417, p. 88. Bradford v. Coit, 77 N. C. 72, 486. Bradin v. Kingland, 4 Watts, 420, pp. 556, 572. Bradish v. Gee, 1 Amb. 229, p. 350. Bradley v. Breach, 2 Keb. 275; Jenk. 179; Style, 13, p. 427. V. Curran, 2 I. E. 0. L. 314, p. 401. V. Fisher, 13 Wall. 354, pp. 142, 143, 144, 167, 186. Bradley, Ex parte, 7 Wall. 364, pp. 142, 146, 167. Bradshaw v. Bradshaw, 1 Euss. & M. 358, p. 297. V. Burton, 7 Dowl. O. S. 329, p. 202. Bradstreet v. Everson, 72 Pa. 124, pp. 478, 507, 526. Bradt v. Koon, 4 Cowen, 416, p. 609. V. Walton, 8 Johns. 298, pp. 507, 521, 523. Bradwell, In re, 55 111. 535-; 16 Wall. 130, p. 76. Brady v. Carter, 12 Ad. & B. 373, p. 557. V. Mayor, 1 Sand. 569, pp. 553, 556, 538. V. N. Y. City, 1 Sand, 569, p. 579. Brambridge v. Massey, 28 Law J. N. S. Ex. 59, pp. 518-520. Bramhill, Ex parte. Coop. 829, p. 148. Bramwell v. Lucas, 2 Barn. & C. 745, p. 516; 4 Dowl. &. E. 307, pp. 278, 284. 309 319 Branch v'. Burnby, 1 Call. 127, p. 373, Brand v. Brand, 39 How, Pr. 193, pp. 258, 286, 291. Brandon v. Gowing, 7 Eich. 459, p. 285. Brandt v. Klein, 17 Johns. 335, pp. 294. 386. Brane v. Spaulding, 52 Pa. 247, p. 497. Branger v. Butterick, 30 Wis. 153, p. 218 Brash v. Walton, 8 Johns. 298, p. 689. Brassington v. Brassington, 1 Sim, & St. 455. pp. 617, 618. Braughe v. Crodock, 1 Moody & E. 182, pp. 274, 282. Bray, Ex parte, 2 Dowl. & L. 9, p. 98. Brayton v. Chase, 3 Wis, 456, pp. 290, 291. Brazier v. Bryant, 2 Dowl. O. S. 600, pp. 133, 481, 486. V. Fortune, 10 Ala. 516, pp. 268. Breckenridge v. McFarlane, Addis. 49, p. 558. Brent v. Eeeves, 3 La, 10, p. 593. Brewer v. Cook, 11 La. An. 638, p. 568. 640 TABLE OF CASES. Bricheno v. Thorp, 1 Jacob, 300, pp. 41T, 429, 436, 51T. Bridges v. Page, 13 Cal. 640, p. 570. Bridgton v. Bennett, 23 Me. 420, p. 342. Briggs V. Georgia, 10 Vt. 68, pp. 420, 549, 557, 562, 568. Briggs, Ex parte, 1 Dowl. & L. 94, pp. 91, 140, 151, 161. Brigham v. Foster, 9 Allen, 419, p. 549. Bright V. Legerton, 2 DeGex, F. & J. 606, p. 331. V. Taylor, 4 Sneed, 159, p. 682. Brightmore, Ex parte, 6 Jur. 15. pp. 183, 185. Bristol V. Dann, 12 Wend. 142, pp. 163, 223, 469. British Go. v. Cobbold, 19 Law R. Eq. 627, pp. 520, 487. Briton v. Lorenz, 45 N. Y. 51, pp. 270, 286. Broad v. Pitt, 3 Car. & P. 418, pp. 253, 254. *■ Broadhurst v. Darlington, 2 D. .P. C. 38, p. 543, Broclt V. Barnes, 40 Barb. 521, pp. 451, 467, 460. Bromhead, In re, 16 Law J. Q. B. 365; 5 Dowl. & L. 52, p. 171. Bromhead, In re, 16 Law J. Q. B. 353; 5 Dowl. & D. 52, pp. 614, 617. Bromley, Ex parte, 2 Dowl. N. S. 388, p. 95. Brook V. Collins, 6 Jur. N". S. 999, p. 332, V. Montague, Cro. Jac. 90, pp. 47, 208, 216. Brooke v. Bryant, 7 Durn. & E. 26, pp. 200, 202. Brooks, Ex parte, 1 Bing. 105, p. 181. Brooks V. Cavanaugh, 11 La. 183, p. 379. V. Day, 2 Dick. 572, pp. 508, 487, 450. V. Durham, 55 N". H.' 559, p. 404. V. Mason, 1 H. Black. 290, p. 541. V. Patterson, 2 Johns. Gas. 102; 3 Cowen, 22, p. 204. Brotherson v. Consalus, 26 How. Pr. 213, pp. 141, 223, 443, 460. Brougher v. Scobey, 23 Ind. 683, p. 497. Broughton v. Broughton, 5 De Gex, M. 6 G. 160; 1 Jur. N. S. 965; 25 L. J. Ch. 250, p. 464. Brounsall, Ex parte, Cowp. 829, pp. ■ 141. 147, 148, 150. Brown, Ex parte, 2 Miss. 303, pp. 141, 149, 151, 153, 155. Brown v. Beauchamp, 5 Mon. 416, p. 164. V. Brown, 4 Ind. 627, p. 441. V. Dawson, 2 Hogg, 76, pp. 486, 488. V. Foster, 1 Hurl. & N. 736; 3 Jur. N. S. 245; 26 Law J. Ex. 249, 280, 283, p. 318. V. Howard, 4 Moore, 508, p. 530. K. Howard, 2 Brod. & B. T3, p. 488. V. Jacobs, 2 Esp. 726, p. 499. V. Jewett, 120 Mass. 215, pp. 275, 319. Brown v. Kennedy, 33 Beav. 133, p. 54. V. Maryland, 12 Wheat. 419, p. 79. V. Nichols, 42 N". Y. 27, p. 358. V. Payson, 6 N. H. 463, pp. 268, 276, 307. V. Pring, 1 Ves. Sr. 407, pp. 445» 468. V. State, i6 Ind. 496, p. 382. Tibbetts, 11 Com. B. N. S. 865, 541. V. Wiggins, 7 L. T. N". S. 622, p; 171. Browne v. Hyde, 6 Barb. 392, p. 381. V. Sayce, 4 Taunt. 320, p. 61S. Brunswick, Ex parte, 4 Ex. 492, p. 98. Bratton, Ex parte, 18 Jur. 580, p. 87. Bryant, Ex parte, 2 Rose, 237; 2 Ves. 407, pp. 605, 609. Brvant's Case, 24 N. H. 155, pp. 148, 150 156 159. Bryan k. 'Taylor, Wright, 245, pp. 369, 373. Bryant v. Williams, 21 Iowa, 329, p. 356 Buckland v. Conway, 16 Mass. 366, 396, pp. 366, 375, 405, 549. V. Inhabitants, etc. 16 Mass. 396, p. 403. Buckle, In re, 2 Dowl. N. S. 476, p. 95. Buckler v. Eawlins, 3 Bos. & P. Ill, p. 433. Bucknall v. Boybell, 7 Scott, 171, p. 544. Buffalo w V. Buff alow, 2 Dev. & B. Eq. 241, p. 465. BuUmer v. GiUmau, 4 M. & G. 108; 4 Scott N. R. 781, pp. 483, 490, 505. Bullock V. Smith, 25 Ga. 225, p. 211. Bumbridge v. Massey, 28 Law J. N. S. Ex. 59, p. 493. Bumiield v. James, 2 Barnes, 232, p. 329 Bumps, Ex parte, W. W. & D. 530, p. 94. Bunberryu.Bunberry, 2 Beav. 173, pp. 263 290 Bunii V. Prather, 21 III. 219, 593. Burbank v. Company, 24 K. H. 552, p. 379 Burciiall «. Spottis, 3 Car. & R. 302, p. 317. Burke v. StUIwell, 23 Ark. 294, pp. 613, 515. Burger, Ex parte, 1 DowL N. S. 292, p. 153. Burgess v. Abbott, 6 Hill, 135, p. 436. Burghart v. Augerstein, 3 Car. & P. 690, pp. 316, 393. V. Gardner, 3 Barb. 64, pp. 565, 566. Burgiu, Ex parte, 1 Dowl. N. S. 292, p. , 185. Burn V. Passmore, 2 Dowl. O. S. 550, p. 202. Burnap v. Marsh, 13 HI. 535, pp. 230, 240. Burnside v. Terry, 51 Ga. 186, p. 278. Burr II. Atwood, 1 Salk. 89, p. 424. TABLE OP CASES. 641 Burrill, Ex parte, 11 Jur. 1082, p. 167. Burrill v. Jones, 3 Barn. & Aid. 47, pp. 136, 13T, 139, 231, 235. Burroughs v. Lock, 10 Ves. 470, p. 448. Burr's Case, IWh. C. C. 503; 9 Wheat. 530, pp. 142, 146, 148, 150, 153. Burton v. Chatterton, 3 Barn. & Aid. 486; 2 Stark. 522, p. 545. V. Chesterfield, 9 Jur. 373, p. 162. V. Hynson, 14 Ark. 32, p. 478. V. Wiley, 26 Vt. 430, p. 478. Busey v. Hardin, 2 B. Mon. 407, p. 459. Bush, Ex parte, 7 Vin. Abr. 74, p. 614. In re, 8 Beav. 66, p. 540. Bushell'sCase, Vaughn, 135, p. 143. Busk V. Lewis, 6 Mad. 29, p. 618. Butler V. Allooru. 8 Tex. 56, p. 419. V. Jones, 7 How. (Miss.) 587, p. 524 V. Knight, Law R. 2 Ex. 109, pp. 395, 409, 410, 414, 426. Butterworth v. Kinsey, 14 Tex. 500, pp. 598, 599. Butt's Case, 1 Boll. Ahr. 489, pp. 197, 203.' Byneu. Stewart, 3 Dessans. 466,. p. 74, 81. Byre v. Odem, 9 Ala, 765, p. 164. Byres v. Surget, 19 How. 303, p. 461. C. Caine v. Martin, 4 Lond. Jur. 500; 2 Beav. 584, p. 522, Cahill V. Benn, 6 Binn. 99, p. 405. Calder v. Bull, 3 Dallas, 386, p. 69. V. Halket, 3 Moore P. C. C. " p. 170. Caldwell v. Shepard, 6 Mon. 392, pp. 549, 558, 580. Calkins v. Lee, 2 Root, 363, p. 262. Calley v. Richards, 19 Beav. 401, pp. 286 313 Calleford «.\ Warren, 5 Barn. & C. 220, p. 178, Calmes v. Stone, 7 La, An, 133, p. 391, Calverly v. Bieseley, Dyer, 180a, p. 326 Camden v. Edee, 1 H, Black, 21, pp 182, 183 Cameron v. Clark, 11 Ala. 259, p. 514. Campbell, Ex parte. Law R. 5 Oh. p 319. Campbell v. Bristol, 19 Wend. 101, pp, 347, 355, 362. V. Bailey, 19 Ibid, 172, pp, 380, 405. V. Benjamin,69 111, 244, p, 407 w, Kineaid, 37 B. Mon. 566, pp. 381, 425, 426, 438, 565 Campbell's Admr's «. Boggs,ll Wright, 324, pp. 446, 487. Campbell v. Arcenaux, 6 La. An. 120, p. 370. V. Galbraith, 5 Watts, 423, p. 341. V. Jones, 4 Wend. 306, p. 163, Cauceium v. The People, 18 N. Y. 128, p. 382. Cane v. Martin. 2 Beav. 584, p. 617. Canterberry v. Common wealth, 1 Dana, 416, p. 402. Cantrell v. Chirm, 5 Sneed, 116, p. 604. Carborne D. Barshaw, 2 Beav. 76, p. 456, Cardross, In re, 7 D. P. C. 861, pp. 138, 176. CardM.Wallridge, 18 Ohio, 411, pp. 374, 412. Carleton v. Bickford, 13 Gray, 591, p. 353. Carmiohael v. Pendleton, Dud. (Ga.) 173 233 Carn'es «,'Platt, 15 Abb, Pr. N. S. 337; S, 0. 36 N. Y. Superior Court, 361, pp. 270, 292. Carratt v. Morley, 1 Q. B. 18, pp. 237, 241. Carr, Ex parte, 3 Q. B. 447, pp. 87, 95. Carr v. Weld, 15 jST, J. L, 314, p. 261. Carrett v. Smallpage, 9 East, 330, p. 502. Carrington v. Holabird, 17 Conn. 530, p. 225. Carroll Co. v. Cheatham, 48 Mo. 385, pp. 401, 402. Carpenter v. Mitchell, 50 111. 470, p, 76. Carpentier v. Dane Co,, 9 Wis. 277, p. 324. V. Oakland, 30 Cal. 439, p. 355. Carpmael v. Powis, Phill. 687, pp. 257, 290, 291, 319. Carstens v. Barnestorff, 11 Abb. Pr. 385. Carter v. Bennett, 6 Fla, 214, p. 626, V. Carter, 8 Law J. N. S. 692, p. 544. V. Davis, 8 Fla. 183, pp. 610, 628. V. Palmer, 8 Clark & F. 657, pp. 456, 460, 466. V. Fallcott, 10 Vt, 471, pp. 380, 413, 418. V. Lames, 2 Moody & R. 47, p. 294. V. New Orleans, etc., 5 Bob. (La.) 33, p, 602. Cartley, Ex parte, 12 Law J. Q. B. 98, p, 91. Cartwell, Ex parte, 6 Jur. 950, p. 91, Cartwell v. Menifee, 2 Ark. 336, pp. 341, 345, Carver v. Mealey, 1 Greene, 360, p, 373. V. United States, 7 Ct, of CI, 499, p. 438, Caruley, Ex parte, 2 Dowl, N, S, 945, p, 91. Case V. Hotchkiss, 1 Abb. N". Y. App. 324, p. 554, 569, Castle's Case, 16 Ves. 412, pp. 199, 200. Cass V. Nibbett, 1 Chit, 745, p, 156. Castro V. Bennet, 2 Johns. 296, pp. 480, 491, 521. CathiBs, In re, 6 Dowl. & L. 566; 7 Com. B. 136, pp. 541, 544, Catt V. Towle, 19 Week, R. 56, p, 264, Cawdry v. Higley, Cro. Cas. 270, p. 245. Chaddock v. Briggs, 13 Mass. 248, p. 245. A. & C— 41. 642 TABLE OF CASES. Chadwick v. Huff, 2 Cromp. M. & R, 29, p. il9. Chalioon v. Commonwealth, 21 Gratt, 822, pp. 258, 272. Cliambers v. Brigman, 68 N. C. 274, p 212. V. Hodges, 23 Tex. 104, pp, 375, 386. V. Mason, 5 Com. B. N. S, 59, pp. 390, 395, 396, 400, 52. V. Miller, 7 Watts, 63, p. 374. Champ V. Stokes, 6 Hurl. & N. 683 ; 7 Jur. N. S. p. 540. Champertown v. Scott, 6 Madd. 93, pp, 615, 618. Champion v. King, 6 Jur. 35, pp. 556. 559. V. State, 3 Cald. 114, pp. 63, 68, 81. Chandler!). Brickness, 4Cowen, 49, pp, 238, 154, 155. Chant V. Brown, 9 Hare, 790, pp. 291 313, 258. Chapman v. Austin, 44 Tex. 133, p. 355, V. Burt, p. 513. V. Chapman, Law R. 9 Eq, 276, pp. 487, 502, 518, .520. V. Cowles, 14 Ala. 103, pp, 380, 405, 411. V. Haw, 1 Taunt. 341, pp. 622 625, 629. V. Phillips, 8 Pick. 24, p. 2.35, V. Van Toll, 8 El. & B. 407 pp. 483, 504. 505. Chapman, Ex parte, 3 D. P. C. 562, p 91. Chapel V. Staines, 2 Mees. & "W. 580; 5 D. P. C. 770; M. & H. 265; Jur. 740, p. 546. Chapped v. Smite, 17 Ga. 68, p. 284. Charlwood v. Berridge, 1 Esp. 345, p 623. Charlton v. Coomhes, 4 Giff. 372, pp, 307, 313. Charwick, Ex parte, 3 Lond. Jur. 23 p. 167. Chatauque Co. Bank v. Rlsley, 4 De' nio, 480, pp. 422, 425. Chaunt v. Smart, 1 Bos. & P. 477, p 185. Cheeves v. Merrick, 2 N. H. 376, p, 376. Chew V. The Bank, 2 Md. Ch. 231, p, 285. Chester v. Apperson, 4 Heisk. 639, p, 350. Chicago Bank v. Larned, 26 111. 218, pp. 565, 566. Chirac v. Reinicker, 11 Wheat. 280, pp 516, 262, 290, 319. Childa V. Delaney, 1 Thomp. & C. 506, p. 270. V. Dwight, 7 Paige 615, pp. 241, 242, 405. Child V. Eureka, 44 N. H. 354, p. 374. Chivers v. Ten, 2 Show. 161, p. 330. Child V. Powder Works, 44 N". H. 354 p. 383. Chillicothe Co. u. Jameson, 48 111. 281, pp. 310, 317. Chile V. Roe, 1 El. & B. 279, p. 393. Child V. Dwight, 1 Dev. & B. Eq. 171, p. 374. V. Irish, 1 McArth. 1, p. 165. Cholmondeley v. Clinton, 19 Ves. 261, pp. 257, 313. 321, 416, 429, 434, 436, 4.38, 506, 517, 528. Ohown V. Parrott, 14 Com. B. X. S. 74, p. 395. Christian, Ex parte, 3 Moore, 578, p. 97. Christie v. Sawyer, 44 N. H. 298, pp. 297, 398. Christy?). Douglas, Wright, 485, pp. 503, 594, 599, 558, 574, 589, 515, 549. Churchyard v. Watkins, 27 Law J. Ex. 13, p. 395. Church V. Drummond, 7 Ind. 17, 218, p. 218. V. Cormack, 2 Ind. Ch. 143, pp. 375, 386. V. Mumford, 11 Johns. 479, p. 522 Citizens' Bank 'v. Culver, 54 X. H. 327, pp. 610, 611. City V. Heiland, 67 111. 278, p. 384. Cincinnati Gas Co. v. Timber Lake, 10 Ohio, p. 217. Claggett V. Phillips, 2 Younge & C. 82, p. 266. Clark, Ex parte, 3 Barn. & Aid. 610, pp. 91, 94, 97, 96. V. Carlon, 7 Jur. N. S. 441; 30 Law J. Ch. 639, p. 464. V. Clark, 1 Moody & R. 3, pp. 258, 290. V. Courser, 29 X. H. 170, p. 382. V. Donovan, 5 T. R. 694 ; 1 Esp. 137, pp. 539, 545. V. Gilbert, 2 Bing. S.C. 353, p. 621. Clarke v. Gorman, 3 Taunt. 493, pp. 198, 151. V. Holliday, 9 Miss. 711, p. 344. Clark V. Kingland, 9 Miss. 248. p. 405. V. Marshall, :34 Mo. 429, p. 518. I). Paine, 11 Pick. 66, p. 235. V. Randall, 9 Wis. 135, pp. 380, 385. V. Richards, 3 E. D. Smith 89, pp. 314, 374. V. Smith, 1 Dowl. & L. 960, p. 609. V. Swaile, 2 Eden, 134, p. 463. V. Willett, 35 Cal. 534, pp. 342, 348, 349. Clay V. Williams, 2 Munf. 105, pp. 306, 516. Cleave v. Jones, 6 Ex. 573, pp. 264, 273, 281. Cleavinger v. Reimer, 3 Watts. & S. 348, pp. 462, 442, 466. Cleeve v. Powell, 1 Mood. & R. 288, p. 274. Clement v. Crossman, 8 Johns. 287, p. 436. Clendineu v. Black, 2 Bail. 44S, pp. 349, 556, 558. TABLE OF CASES. 643 Cliff V. Prosser, 2 D. P. C. fi2, pp. 405, 474. 48. Clifford V. Porter, 5 Dowl. 226, p. 147. Clifton, Ex parte, 5 D. P. C. 218, p. 137 Clussman v. Merkel, 3 Bos. 402, pp 387, 508, 520. Cluttert)uck v. Hulls, 4 Dowl. & L. 30, p. 201. Glutton V. Pardon, 1 Turn. & E. 301, p 620. Coates V. Birch, 2 B. 252 ; 4 Wash. C 718, pp. 2(;0, 2H4, 298, 309. Cohden !•. Kendricks, 4 T. E. 431, pp. 254, 516. Cohbelt V. Hudson, 1 El. & B. 11, p 226. Cocks (. Brewer, 11 Mees. & "W. 51 2 Dowl. 000, p. 436. r. Harmon, 6 East, 404; 2 Smith 409. pp. 173, 619, 620. Godrington r. Lloyd, 8 Ad. & E. 449, & P. 442; 1 W. W. & H. 368, pp. 237, 238, 240, 241. Goe [■. Smith, 4 Ind. 79, p. 555. Coifin I-. Coffin, 7 Greenl. 77 111. 337, pp. 513, 514. Cohen f. Wright, 22 Gal. 293, pp. 68, 75, 133, 153. Goit V. Sheldon, 1 Tyler, 304, p. 229. Cokes ('. Hutton, 2 Buss. 357, p. 92. Coke 1'. Allen, 8 Mod. 77, p. 326. Coke V. McClellan, 4 Hill, 59, p. 201. Coleman v. Grubb, 23 Pa. .393, p. 404. Colegrave v. Manley, 1 Turn. & E. 401, pp. 434, 617, 620. Cole V. Bennett, 6 Price, 15, p. 625. Cole, Ex parte, 1 Doug. 114, pp. 100. 167. Cole V. Grove, 1 Scott, N. E. 50, pp. 134, 160. V. McClellan, 4 Hill, 60, p. 134. Collaud, Kx parte, 2 B. & A. 315, p. 100. Collier v. Nokes, 2 Car. & K. 1012, p. 317. Collins V. Brook, 5 Hurl. & N. 700; 29 Law. J. Ex. 255, p. 332. Colledge v. Horn, 3 Bing. 119, p. 390. Gollett V. Challis, 11 L. T. 245; 2 Ex, 484, p. 402. V. Foster, 2 Hurl. & N. 356, p. 386. Collins V. Arnold, 1 B. C. E. 217, p. 427 V. Brook, Fost & F. 407; i Hurl. & N. 270; 28 Law J, Ex. 143, p. 585. V. Griffith, Barnes, 37, p. 507. 1-. Johnson, 16 Com. B. 588, p 140. Collins, In re, 18 Cora. B. 272, pp. 154, 162. Collins V. Nicholson, 2 Taunt. 321, p, 545 Collins, Ex parte, 2 Va. Gas. 222, pp, 81, 94, 162. Colledge v. Horn, 5 Bing. 119, p. 53. Gollmer v. Ede, 40 Law J. Ch. 185, p, 615. Colton V. Sharpstein, 14 Wis. 446, pp. 514, 515 Combe v. London, 1 Euss. 631, p. 292. Commonwealth!;. Austin, 7 Gray, 51, p. 214. V. Brackenridge,l Serg. & E. 187, p. 161. !'. Gibbs, 4 Gray, 146, pp. 221, 454. II. Murphy, 10 Gray, 1, p. 214. r. Newton, IGratt. 453, p. 156. „. Porter, 10 Met. 263, p. 214. Commissioners i-. Younger, 26 Cal. 147, pp. 348, 385. V. Eose, 1 Desaus. 469, pp. 373, 380. Gommjns v. MoLain. 2 Ark. 402, p. 421. Commerell v. Payton, 1 Swanst. 1, pp. 617, 622. V. Boynston, Swanst. 1, p. 620. Commander v. Carrolltou, 15 La. An. 7, p. 568. Gompton v. Chandless, 3 Gamp. 17, 19, p. 519. Comrodden, Ex parte, 10 L. B. Q. B. 138, p. 96. Connecticut Mut. Life Ins. Co. v. Sha- fer, 4 Otto U. S. 457, p. 266. Cooley V. Gecile, 8 La. An. 61, p. 125. V. Doherty, 5 La. An. 163, pp. 569, 585, Gonnop v. Challis, 2 Ex. 484: 6 Dowl. & L. 48; 17 Law J. Ex. 319, pp. 377, 409. Conway v. Smith, 13 Wis. 125, p. 76. Cooke V. Newell, 40 Conn. 596, p. 560. V. Bloodgood, 7 Ala. N. S. 683, p. 402. Cooper, Ex parte, 22 N. Y. 81, pp. 66, 74. Cooper V. Stephenson, 12 Eng. L. & E. 403, pp. 493, 518, 519, 520. Cooper, Ex parte, 5 D. P. G. 703, pp. 95, 546, 66, 74. Cooper & Moss v. Hamilton, 52 111. 119, pp. 332. Cooper V. Garr, 8 Johns. 360, p. 417. V. Harrison, 2 Younge & C. 514, p. 621. Coopwood V. Wallace, 12 Ala. 790, pp. 580, 602, 621. V. Baldwin, 25 Miss. 129, pp. 486, 133, 495, 496. Cook V. Gilliard, 1 El. & B. 26; 17 Jur. 137; 22 Law J. p. 543. V. Hearn, 1 Moody & E. 201, pp. 293, 297. V. Mackrell, 70 Pa. 12, p. 559. V. Eitter, 4 E. D. Smith, 253, pp. 211, 419, 420,422, 490. V. Ehodes, 19 Ves. 273; 3 Ves. & B. 177, pp. 416, 434, 506. V. Settree, 1 Ves. & B. 127, pp. 547, 548. V. Wright, Evan & M. 278, pp. 237, 386. Gopeland v. Watts, 1 Stark. 95, p. 298. 644 TABLE OF CASES. Ooppinger v. Lynnott, 3 Ir. C. L. R. 563, p. 5fi0. Corey v. Russell, 4 Weud. 204, p. 201. Corvin v. Mulligan, 1 Bush. 297, p. 405. Cornelius v. Harrison, 2 Fost. &P. 758, p. 162, Corning v. Cooper, 7 Paige, 587, p. 417. V. SoutMard,3Hill, 552, pp.383, 406, 412, 415. Cort V. Sheldon, 1 Tyler, 300, p. 523. Corpus Christi College, 6 Taunt. 105, p. 620. Cose V. Carroll, 35 N. Y. 385, pp. 457, 460, 425, 465. Cosens «. Graham, 12 Com. B. 398; 16 Jur. 952; 21 Law J. P. 206, p. 543. Cost V. Genetle, 1 Port. 212, p. 380. Cossels V. Usury, 51 Ga. 621, p. 387. County Assurance Co., 38 Law J. Ch. p. 615. Courtail v. Thomas, 9 Barn. & C. 288; 4 Man. & E. 218, pp. 301, 311, 312. Court V. Gilbert, 2 Barn. 263, p. 621. Cousins V. Paddon, 2 Cromp. M. & P. 547, pp. 556, 571, 606. V. State, 50 Ala. 413, p. 79. V. Purdey, 36 Barb. 266, p. 344. Co.vell V. Betterley, 4 Moore & S. 265; lOBing. 432, p. 617. Covenev v. Tannahill, 1 Hill, 33, pp. 263, 268, 286, 305, 306, 307, 309, 313, 150. Cowell V. Simpson, 16 Ves. 275, pp. 615, 622. Cower' s Case, Noy, 112, p. 198. Cowder v. Shee, 1 Camp. 437, p. 541. Cox V. Bockett, 11 Jur. N. S. 88 ; 34 Law J. C. P. 125, 171 : 13 Week. R. 292; 11 L. T. N. S. 629, p. 171. V. Company, 63 N. Y. 414; R. S. C. 4 Hun. 176; 6 Thomp. & C. 405, p. 406. c. Leech, 1 Com. B. N. S. 617, pp. 483, 488, 494, 495. V. Livingstone, 2 "Watts & S. 103, pp. 485, 490, 491, 493, 472, 476, 478, 481, 509, 571. V. Nichols, 2 Yeates, 547, 345. V. Phillips, Cas. 7 Hardw. 257; 8 Mod. 109, p. 180. V. Sullivan, 7 Ga. 144, pp. 472, 473, 483, 484, 50. Cozzens v. Whitney, 3 R. I. 79, p. 610. Cradock v. Piper, 1 Macn. & G. 664, p. 464. Cragg, Ex parte, 6 D. P, C. 256, p. 95. Craig V. Scott, Wend. 35, p. 219. Craig V. Mausfeld, 1 Ves. 379, pp. 467, 511. V. Ely, 5 Stewt. & P. 354, pp. 374, 380. V. Watson, 8 Beav. 427, pp. 449, 44, 508, 520. Crandall v. People, 2 Ins. 309, p. 212. Crary v. Turner, 6 Johns. 53, p. 383. Craven v. Stubbins, 10 Jur. N. S. 1189, p. 91. Crawford v. McKissack, 1 Port. 433, p. 268. Creighton v. Ingersoll, 20 Barb. 541, p. 60T. „ Cregier v. Cheesebrough, 25 How. Pr. 200, pp. 623, 428, 574. Creswell, Ex parte, 5 Dowl. O. S. 689, p. 176. Creswell v. Byron, 14 Ves. 272, pp. 491, 433, 570, 622, 624. Creswell, In re, 1 Jur. 755, p. 159. Cretwell, In re, v. Fosbrooke, 1 Lond. Jur. 755, p. 176. Cripwell, Ex parte, 5 D. P. C. 689; W. W. & D. 365; 1 Jur. 755, p. 175. Crisp w. Platell, 8 Beav. 62, p. 303. Crissler d. Garland, 19 Miss. 136, p. 292, Critchfteld v. Porter. 3 Ohio, 518, pp. 354, 355, 360. Crittendon v. Strother, 2 Cranoh C. C. 464, pp. 287, 316. Crocker v. Hutchinson, 2 Chip. 117, pp. 477, 480, 482, 485. Croft, Ex parte, 5 Nev. & M. 58, p. 94. Croft V. Hicks, 26 Tex. 383, p. 510. Cromack v. Heathcote, 2 Ball & B. 4, pp. 257, 258, 284, 304. Crook V. Wright, Ryan & M. 278. pp. 243, 330, 331, Crooker v. Hutcliings, 2 Chip. 117, p. 528. Crossby v. Berger, 11 Paige, 377, pp. 258, 309. 316, 317, 263, 294. Cross V. Riggens, 50 Mo. 335, pp. 261, 271. Cross, Ex parte, 2 Dowl. K. S. 292, p. 87. Crossley, In re, 6 T. R. 701, pp. 157, 181. Cross V. Kaye, 6 Duru. & E. 663, p. 97. Crotty V. Mackenzie, 52 How. Pr. 54, p. 606, Crosley v. Murphy, 8Ir, Com, L. R. 301, pp. 434, 484. Crothers v. Lee, 29 Ala. 337, p. 514. Crouder v. Davis, 3 Tyrw. & G. 433. p. 44, Crozer v. Pilling, 4 Barn. & C. 26, pp. 238, 241, 423. CuUiford, Ex parte, 8 Barn. & C. 220, p, 175, CuUough V. Guetner, 1 Binn. 214, 469, p. 337. Cummings v. Missouri, 4 Wall. 277, p. 71. V. ^STaggoner, 7 Paige, 603, p. 135. Cummins v. McLain, 2 Pike, 402, pp. 478, 513, 514, 515. Cunningham, Ex parte, 7 Moore, 410, pp. 91, 97. Cunliffe, Ex parte, 3 Dowl. & L. 548, p. 94. Curlewis v. Brod, 1 Hurl. & C. 322, pp. 477, 489. Currie v. Cowles, 2 Bosw. 542, pp. 506, 556 571 Currier y.R. R. , 37 N. H. 223, pp. 610, (i25. Cushman v. Brown, 6 Paige, 6 Paige, 539, p. 233. Cuthbert, Ex parte, 1 Madd, 78, p, 179. Cutts V. Pickering, 1 Vent. 197, pp. 263, 286, 310. TABLE OF CASES. 645 Cutts !). Solomon, 12 Eng. L. & Eq. 316, pp. 452, 457. Outtiug V. Way, 20 N. H. 120, p. 446. Cyphert v. McClune, 22 Pa. 195, pp. 343, 344, 354, 358. D. Daingerfleld's Executors v. Thurston's Heirs, 8 Martin N. S. 232, p. 424. Daggett, Ex parte, 1 Town. M. & P. 1, p. 96. Dakin, In re, 4 Hill 44, pp. 173, 176, 134. Dale V. Livingston. 4 Wend. 558, pp. 152, 294. Dalon V. Lewis, 7 How. 132, p. 435. Dalton, Ex parte, 9 D. P. C. 110, p. 87. Daniel v. Daniel, 39 Penn. 191, p. 319. V. Eay, 1 Hill (S. C.) 32, p. 388. Danley v. Crawl, 28 Ark. 95, p. 383. Danforth v. Streeter, 28 Vt. 490, p. 165. Darby v. Kapp, 2 Mo. Appeal Reports 486, p. 576. Dartiell, Ex parte, 1 W. W. & H. 174, p. 91. Danby v. Crave, 28 Ark. 95, p. 303. D'Arcey v. Ketchum, 11 How. 165, p. 356. Dartmouth v. Holdworth, 10 Sim. 476, p. 376. Dartwell V. Howard, 4 Barn. & C. 348, pp. 449, 508, 519, 520. Dauntly v. Hyde, 6 Jur. 163, pp. 477, 493. Davenport v. Commonwealth, 1 Leigh 588, p. 213. Davey's Case, March, 141; PI. 214, p. 196 Davidson v. Rozier, 23 Mo. 387, pp. 397, 398. V. Heflfron, 31 Ind. 687, p. 485. J). Napier, 1 Sim. 247, p. 621. Davies v. Jenkins, 11 Mees. & W. 745; 1 Dowl. & L. 32J ; 12 Law J. N. S. Bxch. 386, pp. 240, 477. V. Eyton, 3 Barn. & Adol. 785, pp. 331, 369. V. Ijoundes, 3 Com. B. 808, pp. 427, 431, 438, 608, 609, 610. Davis, Ex parte, 1 Chit. p. 97. V. Downer, 10 Vt. 629, pp. 558, 563. V. Dysart, 21 Beav. 124 ; 1 Jur. N. S. 1153; 25 Law J. Ch. ■122, 322, p. 244. V. Edmondson, 3 Bos. & P. 282, p. 96. V. Jones, 5 Dowl. 503, p. 423. V. Lee, 20 La. An. 248, p. 405. V. Peck, 54 Barb. 423, p. 600. V. Eufe, Cheves 17, p. 245. V. Sharron, 15 Mon. 64, pp. 588, 592, 165. V. Smith, 43 Vt. 269, pp.460, 465, 579. Davis V. State, 33 Ga. 98, p. 211. Davies v. Waters, 9 Mees. & W. 608, pp. 259, 294, 317. Dawson v. Lawley, 4 Esp., pp. 327, 527. Daw V. Bley, 2 Hem. & M. 725, pp. 288, 150. Dax V. Ward, 1 Stark. 409, pp. 571, 504. Day V. Adams, 36 N. C. 254, p. 342. V. Wells, 31 Conn. 344, p. 415. );. Butler, 3 Wils. 59, p. 246. Deane, Ex parte, 2 Dowl. O, S. 533, pp. 173, 176. Dean, In re, 2 Mont. D. &D. 438, p. 614. Dearborn v. Dearborn, 15 Mass. 316, pp. 498, 509, 501, 436, 476, 477, 480, 482, 485, 494, 495, 497. Deardon, In re, 9 Ex. 210, 17 Jur. 993, p. 546. Ex. parte, 5 Exch. 740, p. 76, De Armas' Case, 10 Mart. 123, p. 141. De Bay v. GrifPen, Law Eep. 10 Ch. Ap. 291 ; S. C. 12 Mook's Eng. E. 731, p. 605. Decuir v. Lejeune, 15 La. An. 569, p. 344. De Faur v. Sigel, 4 Perry & G. ; Madd. & G. 20, p. 91. De Figanrere v. Young, 2 Eobt. 671, p. 627. De Firas, Ex parte, 4 Best & Smith, 992, p. 87. Delaplaine v. Crenshaw, 15 Gratt. 457, 213, p. 213. Delaware Ins. Co. v. Gilpin, 1 Binn. 501, p. 558. De Montmorency t). Devereaux, 8 Clark & F. 228, p. 449. De Medina, In re, 10 Week. R. 627; Law T.N. S. 536, p. 188. Dennett v. Cutts, 11 N. H. 163, pp. 611, 612, 615. Denton v. Noyes, 6 Johns. 296, pp. 343, 345, 354, 359, 362, 381. V. Embury, 10 Ark. 228, pp. 510,513,514,515. Dent, Ex parte, 1 Barn. & Aid. 189, p. 97. Dendt v. Barham, 9 Ex. 467; 2 Car. Law Eep. 989; 18 Jur. 295; 23 Law J. Ex. 161, p. 541. Dent V. Halifax, 1 Taunt. 493, p. 330. De Eose v. Fay, 4 Edw. Ch. 40, pp. 451, 457, 468. De Eouflngy v. Peale, 3 Taunt. 484, pp. 135, 445, 468, 488, 489, 495, Derrickson v. Cady, 7 Barr. 27, pp.496, 501. Derwort v. Loomer, 21 Conn. 145, pp. 397, 398. Desborough v. Eawlins, 3 Mylne & C. 515, pp. 272, 311, 362. DeVinueyu. Morris, 9 Watts, 314, p. 318,461. De Voy's Lessee v. Burke, 2 Fox & S. 191, p. 309. De Wolf V. Strader, 26 111. 225, pp. 291, 565. De Wolfe v. , 2 Chit. 68, pp. 133, 176. 646 TABLE OF CASES. De Witt V. Perkins, 22 Wis. 473, p. 276. Dicas V. Stokely, 7 Car. & P. 587, p. 621. V. Warm, 2 Dowl. 812, p. 147. Dicken's Case, 67 Pa. 169, pp. 146, 148, 193 Dibbee v. Trulock, 12 Fla. 185, p. 176. Dickerson v. Burke, 25 Ga. 225, p. 211. Dickenson v. Duston, 21 Midi. 561, pp. 152, 155, 156, 158. Dickley v. Ferris, 11 Com. B. 457, p. 162. Dietrick v. Mitchell, 43 111. 40, p. 307. Deitz V. MoCallum, 44 How. Pr. 493, p. 625. Dillon V. State, 6 Tex. 55, p. 141. Dirks V. Richards, 5 Scott N. R. 534, p. 621. Ditcher v. Kendrick, 1 Car. &. P. 161, pp. 298, 311. Dixon V. Edwards, 2 Anstr. 356, p. 219. V. Parmelee, Crary, 88, pp. 253, 289 293 )). Williams, 4 De Gex & J. 208, pp. 487, 520. Dixon, In re, 3 ,Jur. N. S. 29; Law J. Ch. 89, p. 547. Dobbins v. Dupree, 39 Ga. 394, pp. 327, 358. V. Oswalt, 20 Ark. p. 215. Dodd V. Dodd, 9 Pa. 315, pp. 397, 398. V. Brott, 1 Minn. 270, p. Gil. Doe V. Andrews, 2 Comp. 845, pp. 288, 299, 306. V. Branson, 6 Dowl. 490, pp. 427, 433. Doe d. Cooke v. Roe, 1 Barnes, pp. 319, 327. Ooev. Eaton, 3 Barn. & Aid. 785, p. 362. Doe d. V. Gilbert, 5 Ross; 7Mees. & W. pp. 295, 301. Doe V. Harris, 5 Car. & P. 592, pp. 304, 308. V. James, 2 Moody & R. 47, p. 285. Doe d. Jupp V. Andrews, Cowp. 845, p. 283 V. Martin, 4 T. R. 39, p. 448. Doe V. Phillips, 2 Chit. 170, p. 369. V. Eoe, 3 Dowl. O. S. 496. p. 368. V. Seaton, 2 Ad. & E. 171, pp. 314, 301. V. Langdop, 11 Ad. & E. N. S. 711, p. 295. V. Richards, 2 Car. & K. 216, p. 390. V. Watkins, 3 Bing. N. C. 121, p. 314. Donaldson v. Holdane, 7 Clark & F. 762, pp. 483, 508, 522. Donne, In re, 3 Swanst. 9H, p, 85. Dooley?). Great Northern Railway Co. 4 CI. & B. 341, p. 575. Dorsey «. Credo, 5 Martin N. S. 399, p. 377. V. Goodman, Wright, 120, p. 565. Dorsey's Case, 7 Porter, 293, pp. 68, 74. Doster v. Brown, 25 Ga. 24, p. 211. Dottin's Case, 3 Str. 547, p. 619. Doub V. Barnes, 1 lud. Ch. 127, p. 398. Douglass n. Wood, 1 Swan. 393, p. 164. Dowell V. Dowell, 3 Head, 502, p. 269. Downey v. Garard, 12 Harris, 52, pp. 446, 460, 462. Downing v. Major, 2 Dana, 228, pp. 464. 469. Downton v. Styles, 6 Dowl. 189, p. 160. Doyley «. Roberts, 3 Bing. (N. 0.) 836, pp. 244. 245, 246. Drain v. Doggett, 41 Iowa, 682, pp. 402, 403. Drais v. Hogan, 50 Cal. 121, p. 475. Drapers' Co. v. Davis, 2 Atk. 295, pp. 445, 468, 547. Drax V. Scroupe, 1 D. P. C. 69: Barn. & Aid. 581, p. 520. Drehman v. Stefle, 8 Wall. 597, p. 68. Drew ti. Rose, 2 Ld. Raym. 1398, pp. 200, 204. Driggs V. Rockwell, 11 Wend. 504, p. 294. DuBarre v. Levette, Peake, 77, pp. 262, 290 291 Dubois' Appeal, 38 Pa. 231, p. 195. Ducett V. Cunningham, 39 Me. 386, p. 374. Dudley v. Beck, 3 Wis. 274, pp. 281, 304. Duffin V. Smith, Peake, 108, pp. 254, OQ9 giQ Qig Duffy V. bakes, 3 Taunt. 166, pp. 104, 199. Dukes, Ex parte, 2 W. W. & H. 44, p. 94. Dumas v. Smith, 17 Ala. 305, p. 593. Dunbar v. Morris, 3 Rob. (La.) 278, p. 383. Duncan v. Bruthaupt, 1 McCord, 149, pp. .549, 574. V. Richmond, 7 Taunt. 391, pp. 171, 617, 621. Duncan, In re, 5 Best & Smith, 341, p. 87. Duncan v. Yancv, 1 McCord. 149, pp. 558, 568. Dundas v. Duttens, 1 Ves. Jr. 196, p. 345. Dungey v. Angrove, 2 Ves. & B. 93, p. 179. Dunman v. Hartwell, 9 Tex. 495, p. 350. Dunn V. Amos, 14 Wis. 106, p. 280. Dunn, Ex parte, 6 Ves. 547, p. 545. Dunn V. Hallen, 2 Fost. & F. 642, pp. 506, 544. V. Packwood, 11 Jur. 242, pp. 52, 2,57. V. Record. 63 Me. 17, pp. 458, 460. V. Vannerson, 8 Miss. 579, pp. 512, 513. Dunson u. Paterson, 11 Jur. 96; 8 L. T. 313, p. 469. Dupeu V. Keeling, 4 Car. &'P. 102, pp. 368, 523, 559. Duries v. Wright, S Com. B. 831; 7 Dowl. & L. 292; 19 Law J. Com. P. 137, p. 512. Duvkee y. Leiand, 4 Vt. 615, pp. 254, 295. Dwight II. Simon, 4 La. An. 490, pp. 417, 424, 507, 523, Dwyer v. Collins, 7 Ex. 639, pp. 295, 296, 309, 318. TABLE or CASES. 647 Dyce^ In re, Sombre, 1 Macii. & G. 122, p. 444. Dyson v. Biroli, 4 Bos. & P. 4, p. 200. Eager i'. Barnes, 31 Beav. 579, p. 506. Ealer v. McAllister, IS) La. An. 29, p. 565. Earl of Cliolmondeley's Case, 19 Ves. 261, p. 260. Earle «;. Grout, 46 Vt. 113. pp. 267, 314. Earl of McDonald v. Masterman, 7 Law R. Eq. 504, p. 524. Earle, In re, 17 ,Tur. 440, p. 87. Eastman i'. Coos Bank, 1 N. H. 26, p. 566. East River Bank v. Kennedy, 9 Bosw. 543, pp. 509, 384. Easton v. Smith, 1 E. D. Smith 318, pp. 549, 579, Eckrote r. Myers, 41 Iowa, 324, p. 460. Eccles V. Stephenson, 3 Bibb, 517, pp. 477, 482, 510, 486, 501, 504, 521. Edelin v. Richardson, 4 La. An. 503, pp. 574, 576. Edgar v. Hunter, Holt, 526, p. 44. Edgar Co. v. Mayo, 3 Gill. 82, p. 75. Edgerton v. Brackett, 11 N. H. 218, p. 385. Edsall V. Brooks, 17 Abb. Pr. 227; 26 How. Pr. 426, p. 217. Edward v. Cooper, 3 Car. & P. 277, p. 571. Edwards «. Lawless, 5 Rail. C. 357; 6 Dowl. &L. 105; 6 Com. B. 329; 17 Law J. Com. P. 293, p. 540. I'. Myriek, 12 Law J. Ch. 52; 2 Hare, 60, pp. 457, 465. Egan V. Charles Co. Court, 3 Har. & McH. 169, p. 75. r. Roonev, 38 How, Pr. 121, pp. 395, "424, 426. Eggington v. Cumberleje, 1 Ex. 271 ; 5 Rail. E. 113; 11 Jur. 932. p. 540. Eicke V. Noke.s, Moody & M. 303, pp. 291, 296, 291), 306. Elam V. Lewis, 19 Ga. 608, p.. 201. Elderton v. Emmens, 4 Com. B. 479; 11 Jur. 212 ; 16 Law J. & C. 209 ; S. C. (in error) 13 Com. B. 495; 4 H. L. Cas. 624; 18 Jur. 21, p. 333. Eldridge v. Fobwell, 3 Blaekf . 208, p. 354. Elkiiigton v. Holland, 9 Mees. & W. 661, p. 483. V. Holland, 9 Mees. & W, 650. p. 508. Elliott V. McClelland, 17 Ala, 206, pp. 580, 587, 593. Ellis, In re, 5 L. T. N. S. 686, p. 96. Ellsworth 1'. Campbell. 31 Barb. 134, pp. 360, 362, 364, 370, 523. Elsam, In re, 3 Barn. & C. 597; 5 Dowl. & R. 889, pp. 181, 182, 187. Elsee, Ex parte, 1 Montague, 69, p. 50. Elston V. Schelling, 7 Robt. 74, p. 485. Elton V. Larkins, 1 Moody & R. 196; S. C. 5 Car. & P. 385, p. 378. Elwell V. Quash, 1 Strange, 20, p. 327. Elwood V. "Wilson, 21 Iowa, 523, pp. 572, 610. Ely V. Cook, 28 N. Y. 365, p. 627. V. Harvey, 6 Bush, 520, pp. 401, 403. Emden v. Darby, 1 Nev. Rep. 22, pp. 608, 628. Emmens v. Elderton, 13 Com. B. 495; 4 H. L. Cas. 624, p. 343. Emmet, In re, 2 Caines, 387, pp. 199, 202, 203. Emory v. Long, 9 East, 481; 1 Mylne & K. 98, p. 150. Englehart v. Hart, 10 Mees. & W, 548; 4 Dowl. & L. 60; 15 Law J. Ex. 312, p. 542. Erwin v. Blake, 8 Peters, 18, pp. 410, 412, 415. Esdaille v. Oxenham, 3 Barn. & C. 225; 5 Dowl. & R. 49, pp. 617, 618. Eshleman v. Lewis, 49 Pa. 410, p. 457. Estcourt, In re, 8 Jur. 985, p. 94. Evans, In re, 1 W. W. & H. 34; 2 Jur. 47, pp. 95, 137. V. Bell, 6 Dana, 479, p. 580. V. Collins, 5 Ad. & E. N. S. 804, p. 242. u. Duncombe, 1 Cromp. & J. 372; 1 Tyrw. 283, pp. 136, 138. V. Ellis, 5 Denio, 640. pp. 451, 452, 457, 462, 465, 587. V. Evans, 5 Denio, 640, p. 468, I'. Lewis, 1 Law R. Com. P. 656, p, 525. V. P. 2 Wils. 282, p. 174. V. Taylor, 2 D, P. C. 349, p. 547. V. Watrous, 2 Port. 205, p. 184. Evingdon's Case, 2 Strange, 1143, p. 198. Eyre v. Shelly, 8 Mees, & W. 154; 5 Jur, 439, p. 643. Ezart V. Lister, 5 Beav. 585; 12 Law J. Ch. N. S. 10, p. 444. Fairbanks «. Stanley, 18 Me. 296, pp 373, 375. Fairland v. Eneror, Dick. 114, p, 606, Fairthorne, In re, 3 Dowl. & L. 548, pp 136, 137. Faith, Ex parte, 9 D. P. C, 973; 5 Jur 653, p, 176, Faithful, In re. Law. Rep. 6 Eq, 325, p I 615. ' Fake v. Smith, Abb. Pr. 108; 2 Abb Ct. of Ap. Dec. '76, pp. 394, 404. Fare v. Chandler, 24 Tex. 146, p. 568. Farquand I'. Knight, 2 Mees. & W. 100 284. Farhall v. Farhall, Law Rep, 7 Eq. 286 p. 615. Farley v. Hebber, 3 Dowl. 538, pp. 427 431,' 433. 648 TABLE OF CASES. Farmers' Bank v, Ketohum, 4 McLean, 120, p. 391. V. Sprigg, 11 Md. 389, p. 378. Farmers' Co. v. Walworth Co., 23 "Wi,s. 249, p. 478. Farmers' Loan Co. v. Mann, 4 Eobt. 365, 568, 574. Farmers' & Mechanics' Bank v. Troy City Bank, 1 Doug. (Mich.) 457, p. 340. Farnsworth v. Gerrard, 1 Comp. 38, p. 506. Farrell's Case, Andrew, 278, p. 182. Farrlll v. Head, Barnes, 41, p. 199. Farrington v. Wright, 1 Minn. 241, p. 343 Faulkner, Ex parte, 1 W. Va. 269, p. 63. Faust V. Eepoor, 15 How. Pr. 570, pp. 427, 438. Farrell v. Eastern etc. 3 Ex. 344; 2 Dowl. & L. 54, p. 379. Faweett v. Garford, Trin. 29 Geo. Ill, p. 181. V. Weathall, 2 Car. & P. 305, p. 56S. Fawkes «. Pratt, 1 P. Wms.593, p. 179. Fearne v. Wilson, 6 Barn. & C. 86; 6 Dowl. & E. 157, p. 545. Fearow, Ex parte, 5 Ves. 633, p. 645. Fell V. Brown, Peake, 96, pp. 50, 51, 536. Fellows, Ex parte, 2 Scam, 369, p. 124. Fendall v. Nokes, 7 Scott, 647, p. 230. Fenner v. E. E., Law E. 7 Q. B. 767, pp. 291, 295. Fenno v. English, 22 Ark. 170, pp. 420, 421, 503, 579, 600. Fenton v. Correa, 3 Car. & P. 45; 1 Eyan & M. 262, p. 345. Fenton, In re, 5 Nev. & M. 239; 3 Ad. & E. 404; 1 Har. & M. 310, pp. 133, 175. Fenton v. Euggles, 1 Bos. & P. 365, p. 219. Fenwick v. Eeed, 1 Mer. 114, pp. 620, 241. Ferguson!). Crawford, 7 Hun, 25, p. 343. Ferguson, In the matter of, 6 Cow. 569, pp. 184, 150. Ferguson v. Mahon, 11 Ad. & E. 179, p. 356. Field V. Gibhs, Pet. C. C. 155, pp. 229, 236, 223, 352, 355. V. Proprietors, 1 Cush. 11, p. 343. V. Watson, 8 Mo. 686, p. 485. Fijes V. Adams, 4 Taunt. 632, p. 608. Fiihy V. Miller, 25 Pa. 264, p. 397. Fincliett v. How. 2 Camp, 276, p. 331. Finnwick v. Bovee, 4 Thomp. & C. 98, 628. Fish V. Kelly, 17 Cora. B. N. S. 194, 196, p. 622. Fisher, Ex parte, 9 Price, 349, pp. 147, 156. Fisher v. Fielding, 1 Price, 384, p. 203. V. Henning, 1 Ph. Ev. 170, pp. 295, 298. Fitch V. Gardner, 2 Keyes, 516, pp. 597, 627. V. Scott, 3 How. (Miss.) 314, pp. 476, 485, 491, 493. Flanders v. Sherman, 18 Wis. 575, pp. 425, 426. Fleming v. Culbert, 46 Pa. 498, p. 510. Fletcher v. Daingeriield, 20 Cal. 430, pp. 66, 141, 142, 149, 156, 158. V. Peck, 6 Cranch. 87, p. 69. V. State, 49 Ind. 124. p. 212. V. Winter, 3 Fost. & F. 138, pp. 505, 556. Flight V. Cook, 1 Dowl. & L. 174; 13 Law J. Q. B. 78, p. 201. V. Leman, 4 Q. B. 883; 12 Law J. Q. B. 353, pp. 562, 589. Flint, Ex parte, 2 Dowl. & E. 406, p. 183. Flint V. Pike, 4 Barn. & C. 478, pp. 47, 51, 209. Florida v. Kirke, 12 Fla. 278, pp. 141,142. Flower v. Bolingbroke, 1 Str. 639, pp. 476, 493, 498. I'. O'Connor, 7 Lea. 207, p. 598. Floyd and Barker's Case, 12 Coke, 25, p. 143. V. Goodwin, 8 Yerg. 484, p. 580. V. Nagle, 2 Atk. 568, pp. 468, 487. 507. V. Tompkins, 23 Ind. 348, p. 370. Fogerty v. Jordan, 2 Eobt. 319, 325, pp. 514, 580, 627. Fogg V. Madan, 1 Bos. & P. 629, p. 205. Foley, Ex parte, 8 Ves. 33, p. 166. Follansbee v. AValker, 72 Pa. 228, pp. 226 227 Folle'tt, In re, 30 Beav. 629, p. 91. Follett V. Jeffery, 1 Sim. N. S. 17, pp. 307, 317. Foot V. Brown, 8 Johns. 64, p. 248. V. Tewksbury, 2 Vt. 97, pp. 625, 611. Poote V. Eichmond, 42 Cal. 439, p. 358. Ford V. Harrington, 16 N. Y. 285, 288, pp. 452, 457, 461, 465, 587. Ford, In re, 8 D. P. C. 684, p. 176. Ford V. Webb, 2 Brod. & B. 241, p. 548. V. Williams, 3 Kern. 377, p. 495. V. Williams, 24 N. Y. 359, p. 240. Foreman v. Hunt, 3 Dana, 614, p- 459. Forshall v. Coles, Peake Ad. Cas. 286, p. 450. Forsham, In re, 17 Law J. Ch. 61, p. 417. Forshaw, In re, 16 Sim. 161, p. 629. Forsythe v. Beveridge, 52 111. 268, p. 628. Fortescue, Ex parte, 2 Holt, 1: 1 Vent. 213, p. 151. Fosset V. Middleton, 47 Pa. 214, p. 374. Foster v. Blakelock, 5 Barn. & C. 228; 8 Dowl. & E. 48, pp. 231, 236. V. Gansey, 13 Johns. 465, p. 201. Foster, In re, 6 Jur. N. S. 687, p. 546. Foster v. Jack, 4 \\'atts, 344, pp. 548, 549, 556, 558, 567, 587. V. Eowland, 7 Jur. N. S. 998, p. 377. V. Wiley, 27 Mich. 244; S. C. 15 Am. K. 185, pp. 375, 243, TABLE OF CASES. 649 Potts V. Dutton, 8 Beav. 493, pp. 492, 528. Fountain v. Young, 3 Esp. 113, pp. 262, 290. Fowler v. Hunt, 10 Jolins. 463 ; 4 Wend. 204; 1 Ibid. 32; 4 Call. 97; 9 Wend. 503; p. 119. Fowler v. Morrill, 8 Tex. 153, pp. 338. 347, 377. V. Eoe, 4 Dowl. & L. 639, p. 418. Fox V. Cooper, 2 Q. B. 237, p. 445. V. Fox, 24 How. Pr. 409, p. 623. Foxall V. Bowerman, 2 East, 182, p. 219. Foxon V. Gascoigne, Law Eep. 9 Ch. 645, pp. 611, 615. Francis v. Webb, 7 Com. B. 731, pp.. 625, 630. Frankerd, Ex parte, 3 Barn. & Aid. 257, p. 92. Frankland v. Cole, 2 Cromp. & J. 590, pp. 491, 494. Frankland v. Lucore, 4 Sim. 586, pp. 486, 488. Franklin v. Cothouse, 3 Swanst. 301, p. 447. Eraser's Case, 1 Burr. 291, pp. 85, 86. Fray v. Blackburn, 3 Best. & Smith, 576, p. 170. V. Foster, 1 Bing. F. 681, p. 489. V. Vouler, 1 El. & E. 839, pp. 395, 396. Frear v. Drinker, 8 Pa. 520, p. 228. Freehold Co. In re, 21 Law J. N. S. 195, p. 609. Freelove v. Cole, 41 Barb. 318, p. 478. Freligh v. Ames, 31 Mo. 253, p. 215. Prisaell v. Haile, 18 Mo. 18, p. 610. Friswell v. King, 15 Sim. 191, pp. 607, 614, 616, 617. f Frost, Ex parte, 3 D. P. C. 322, pp. 87, 147, 152. Frost V. Lawler, 34 Mich. 235, p. 367. Frye v. Calhoun Co., 14 111. 132, pp. 347 351 Fryer, Ex parte, 2 Har. & W. 294, p. 137. Fryer v. Smith, 6 Dowl. 299, p. 160. Fuloher, Ex parte, 4 Jur. 435, p. 95. Fullalove v. Parker, Com. B. N. S. 246, p. 98. Fuller V. Brown, 10 La. An. 350, p. 429. Fulton V. Maccracken, 18 Md. 528, p. 277. Furlong v. Howard, 3 Schoales & L. 115, p. 620. G. Gaillardu. Smart, 6 Cowen, 385, pp. 374, 378. 379, 386, 40(i, 407, 476, 485. Gaines, Ex parte, 3 Hurl. & C. 294, p. 638. Gainsford v. Grammar, 2 Camp. 9, pp. 263, 264, 317, 378, 390. 393, 406. Gages' Case, Hob. 177, p. 204. Galbraith v. Elder, 8 Watts, 81, pp. 223, 442, 462, 466. Gallagher v. Thompson, Wright, 466, p. 480. V. Williamson, 23 Cal. 331, p. 278. Gambert v. Hart. 44 Cal. 542, pp. 483, 485, 487, 494. Gander v. Slausfield, 4 De Gex & J. 1, p. 288. Garbutt, In re, 9 Moore. 157; 2 Bing. 74, pp. 100, 224. Gardner, Ex parte, 2 Dowl. O. S. 520, p. 139. Ex parte, 8 L. T. N. S. 315, pp. 88, 91. Gardner v. Ennor, 35 Beav. 549, p. 464. V. Jessup, 2 Wils. 44, pp. 197, 199. Garland v. Scott, 3 Sim. 396, p. 269. Garden v. Sheers, Ca. Pr. C. P. 60-102, p. 199. Gardner v. Taylor, 5 Abb. Pr. N. S. 33; S. C. 36 How. Pr. 63, pp. 428, 429, 430. V. Tyler, 5 Abb. Pr. N. S. 33, p. 605. Garfield v. Kirk, '65 Barb. 464, p. 564. Garland, Ex parte, 4 Wall. 380, pp. 64, 66, 68, 69, 71, 142. Garner v. Lawson, 1 Barn. 101, pp. 486, 487. Garr v. Mairet, 1 Hilt. 498, p. 574. V. Seldon, 4 N. Y. 91, pp. 207, 216, 248. Garrison v. McGowan, 48 Cal. 592. p. 371. Garterside v. Outram, 26 Law J. Com. P. pp. 113, 114, 308. Garry v. Wilks, 2 Dowl. O. S. 649, pp. 136, 138. Garthwaite v. Wentz, 19 La. An. 196, p. 411. Garvin v. Lowry, 15 Miss. (7 Smed. & M.) 24, p. 380. Gascoyne's Case, 14 Ves. 183, pp. 199, 200. Gaulden v. Georgia. 11 Ga. 47. p. 221. Gauldin v. State, 11 Ga. 47, p. 454. Gay V. Capers, 1 Const. 198, p. 558. Gedye, In re, 14 Beav. 56; 15 Jur. 851, p. 539. Gee, In re, 2 Dowl. & L. 997, pp. 136, 137. Gehrke v. Jod, 59 Mo, 522, pp. 155, 485, Gemmell v. McAllister, 6 Jur. N. S. 285; 11 Week. E. 486; 7 L, T. N. S. 841, p. 467. George v. Elston, 1 Scott, 518 ; 1 Hodges, 63, p. 625. Georges tt. Georges, 18 Wis. 244, p. 618. Gerrard's Case, 2 W. Black. 1125; 2 Ves. 201, pp. 197, 198. Gerry v. Fisher, 6 East, 549, p. 429. Getchell v. Clark, 5 Mass. 309, pp. 610, 611. Gibbs V. Loomis, 10 Johns. 463, p. 200. Gibbert v. The People, 1 Denio. 41, pp. 206, 207. Giberson, Ex parte, 4 Cranch C. C.503, p. 483. 650 TABLE OF CASES. Gibbons v. Gibbons, i Har. (Del.) 105, p. 438. Gibson c. Chaters, 1 Bos. & P. 129, p 240. 0. Jeyes. 6 Ves. 266, 278, pp 452, 459, 465, 467. V. Jeyes, 6 Ves. 266, p. 135. V. May, 4 De Gex M. & G. 512, p. 614. V. Mudford, 1 EoU. Eep. 408 pp. 237, 240. Giddings v. Eastman, 5 Paige, 561, pp 460, 462. GifEord v. Giiford, Forrest, 109, pp. 628 630. i: Thorn, 1 Stock Ch. 702, pp, 351, 364, 722. Gihon V. Albert, 7 Paige, 62, 278, p, 509, Gilbank v. Stephenson, 30 "Wis. 155, p, 218 Gilbeson v. Snyder, 8 Watts & S. 200. pp. 388, 391. Gilbert v. Cooper. 15 Sim. 343, p. 137. V. Dynely, 3 Scott N. R. 384 S. C. 3 Man. & G. 12, pp 483, 562. V. Ross, 7 Mees. & W. 112; 8 Dowh Pr. 389; 4 Jur. 321 p. 298. V. Williams, 8 Mass. 57, pp, 50, 472, 493, 483, 491, 509. Gill V. Lougher, 1 Oromp. & J. 170, pp, 497, 509. Gillard v. Bates, 6 Mees. & W. 547; 8 D. P. C. 744, pp. 258, 284. Gillespie's Case, 3 Yerg. 325, pp. 349, 344, 371. Gillon V. Ryder, 15 Com. B. 729; 3 C L. E. 263, p. 547. ,Gilmant;. Horej', 26 Mo. 280, pp.496 518. V. Lewis, 4 Zab. 248, p. 350. Gilmour v. Brindley, 7 Dowl. & R. 259, p. 427. Gimers v. Moore, 1 Barn. & C. 654, pp, 431, 432, 433. Gimlet, Ex parte, 11 Week. R. 210, p 96. Gindirs i'. Moore, 1 Barn. & C. 564, p 429. Givens v. Briscoe, 3 J. J. Marsh. 532, p. 509. V. Briscoe, 3 J. J. Marsh. 534, pp. 380, 383, 401, 411, 412, 414. Given v. Driggs, 3 Caines, 150, p. 426. Glaister v. Haser, 8 T. B. 70, 465, pp 626, 608. Gleason v. Clark, 9 Cow. 57, pp. 480, 483, 486, 491, 521, 556, 563, 591. V. Dodd, 4 Met. 333, pp. 3.35, 356, 426, 438, 357. Glen V. Cuttle, 1 Grant, 273, pp. 510, 513 514 515. Glyn'w. Caulfi'eld, 3 Maon. & G. 433, p 289. V. Hutchinson, 2 Ad. & E. 660, p. 100. Glynn v. Hutchinson, 3 Dowl. 529, p. 82. Gobbitt V. Chaytor, 1 Aust. 279, p. 628. Goddard v. Gardiner, 28 Conn. 172, pp. 291 303 318 Godfrey «. Dalton, 6 Bing. 467, 568; 4 Moore & P. 149, pp. 483, 484, 473, 475, 497, 507, 527. Godefroy v. Jay, 7 Bing. 413; 5 Moore & P. 213, pp. 476, 477, 481, 489, 491, 492, 497, 500, 527. Godspeed v. Puller, 46 Me. 141, p. 163. Goldie V. Shultleworth, 1 Camp. 70, p. 391. Goldthwaite v. Council, 50 Ala. 486, p. 79. Goltra V. Walcott, 14 111. 89, p. 285. Gonnigal v. Smith, 6 Johns. 106, p. 436. Goodall V. Bedell, 20 N. H. 205, pp. 565, 566. V. Little, 1 Sim. N. S. 135, pp. 289, 297. Goodell, In re, 39 Wis. 232, p. 79. Goodenough v. Spencer, 15 Abb. Pr. N. S. 248, p. 453. Goodell V. People, 5 Parker Cr. C. 206, p. 221. Goodland v. Frankland, 2 Dowl. X. S. 975 ; 7 Jur. 671 ; 12 Law J. Q. B. 249, p. 547. Goodlight J). Bridge, Loiit, 27; 7 Johns. Ch. 25; 2 Cowen, 195. p. 321. Goodman v. Holroyd, 13 Com. B. X. S. 839, p. 308. V. Walker, 30 Ala. N. S. 482; S. C. 21 Ala. X. S. 642, pp. 483, 494, 495, 49f). c. Walker, 30 Ala. 482. 842, pp. 473, 484. Goodrich, lure, 79 111. 148, pp. 140, 151. Goodrich v. Jones, 2 Curt. 671, p. 303. V. Railroad, 38 Ibid. 390, p. 379. Goodwin v. Gibbons, 4 Burr. 2108, pp. 238, 241. V. Gosnell, 2 Colly. C. C. 457, pp. 147, 449. Gordon v. Miller, 14 Ind. 204r, p. 568. Gore V. Bowser, 5 De Gex & S. 30, p. 308. 1-. Brazier, 3 Mass. 543, p. 493. V. Harris, 8 Eng. L. & Eq. 147, p. 311. Gorham v. Gale, 7 Cowen, 739, pp. 383, 387, 406, 410, 412, 415. 424. Goring v. Bishop, 1 Salk. 87, pp. 172, 619. Goss I'. Gibbs, Law R. 8 Eq. 522, p. 288. Gould V. Davis, 1 Cromp. & J. 415; 1 Tyrw. 380, p. 630. Governor r. Raley, 'M Ga. 173, p. 527. Gower v. Emery, 18 Me. 79, pp. 275, 277 281 Grace v. Wilmer, 6 El. & B. 982; 3 Jur. N. S. 64; 26 Law J. Q. B. 1, p. 204. Graham v. O' Fallon, 4 Mo. 338, pp. 281, 304. V. People, 63 Barb. 468, pp. 258, 296, 307. TABLE OP CASES. 651 Granger v. Warrington, 8 111. 299, p. 284. Grant, Ex parte, 3 Dowl. 320, pp. 153 155. Ex parte, 3 Dowl. 320, p. 184. Grant v. White, 6 Cal. 55, pp. 429, 430 Gray, Ex parte, 5 Jur. 25, p. 167. Gray v. Cockerel, 2 Atk. 144, 307; S C 3 Atk. 727. p. 622, V. Emmons, 7 Mich. 533, pp 441, 450, 485, 587. V. Fox, 43 Mo. 570, p, 268. V. Gower, 2 Marsh. 273, pp. 562, 589. V. Wainman, 7 Moore, 467, p. 563. ('. Wass, 1 Greenl. 257, pp. 373, 423, 425, 426. Graves v. Eades, 1 Marsh. 113; 5 Taunt. 429, pp. 623, 625. II. Lock-wood, 30 Conn. 276, pp. 565, 567. Grayson v. Wilkinson, 5 Smedes & M, 268, pp. 483, 486, 494, 497, 513, 529. Greaves, Ex parte, 1 Cromp. & J. 374, pp. 136, 138. Green v. Dixon, 1 Jur. 137, pp. 44, 449, 477, 508. V. Chipman, 23 Ind. 195, p. 513. V. Exp. Co. 39 Ga. 20, p. 625. V. Hassell, Say. 233, p. 545. V. Jackson, Peake's Ad. Cas 286, pp. 249, 450, 499. V. Elgie, 5 Q. B. 114, pp. 237, 241 242. Greene v. Reece, 8 Com. B. 88, p. 98. Greenlee v. McDowell, 4 Ired. 481, pp, 373, 375, 386. Greensil v. Hopley, 1 Bos. & P. 103, p 219. Greenville v. Roberts, 7 La, 66, p. 411. Greenough v. Gaskell, 1 Mylne & K 98, pp. 254. 256, 257, 258, 259, 262, 264, 284, 306, 317, 516, Gregg V. Slater, 22 Beav. 314; 2 Jur. N" S. 246; 25 Law J. Ch, 440. p, 331. Gregory, In re, 6 Jur, 282, p. 172 Gregory v. Cresswell, 1 Holt, 17, p. 617 Grell V. Levy, 16 Com. B. N. S. 73; 10 Jur. N. S. 210, p, 588, Gresley v. Mousley, 2 Kay & J. 288; 2 Jur. N, S. 156, p. 290. Grey, Ex parte, 5 Dowl, & L, 275, p. 98 Greyu. Brackenridge, 2 Pa. 175, pp. 548. 549. 558. Greydon v. Patterson, 13 Iowa, 256, pp 402, 403. Greville, In re, 9 Law R. Com. P. 13, p. 89, Gridley v. Austin, 16 Q. B, 504; 13 Jur, 680; 18 Law J. Q. B. 337, p. 540, Griifen v. Eyles, 1 H. Black, 122. p. 605, Griffith V. Brown, Ca. Pr. C. P. 64, p 199. V. Davis, 3 B. & A. 503, p, 311, V. Williams, 1 Cromp. & J. 47 p, 406. Griffiths V. Griffiths, 12 Law J. N. S 397; 2 Hare, 587, p. 416. V. Griffiths, 2 Hare, 590, p. 624. Grilleu v. Leyburne, 1 T. R. 407, p. 548. Griasel v. Peto, 9 Bing. 1, pp. 436, 455, 517. Grissell v. Peto, 2 M, & S. 586, p, 429. V. Robinson, 3 Barn. & C. 10, pp, 556, 559. Grinstead v. Grinstead, 1 Turn, & Veu, P. Ch. 308, p, 231. Griswold v. Sedgwick, 6 Cowen, 462, p. 238. Groom v. Wortham, 2 Dowl, K. S. 657, p. 204. Grosvenor v. Danforth, 16 Mass. 74, p. 374. Grubb, Ex parte, 5 Taunt. 206, pp. 173, 620. Grugen v. Wliite, 4 Taunt. 881, pp. 180, 184. Guest V. Smythe, 5 Law R. Ch. 551, p. 4(il. Gude, Ex parte, 1 Dowl. & L. 675, p. 98. Guilford v. Sims, 13 Com. B. 370, p. 154. Gullet (', Lewis, 3 Stewt. 23, p. 380. Gutaris, Ex parte, 7 Jur. 1039, p. 74. Gwellian v. Barnet, 2 Smith, 155, p. 174, G Wynne, Ex parte, 2 W. W. & H. 95, p. 94. H. Hadley v. Ayres, 12 Abb. Pr. N". S. 240, p. 554, u. Bainbridge, 3 Q. B. 316, p. 416. V. Good, 24 Tex, 232, p. 415. Hadeu, Ex parte, 1 W. W. & H. 321, p. 91. Haggot V. Argent, 7 Taunt, 472, p. 433. Hager i>. Shindler, 29 Cal. 47, p, 276, Hague, Ex parte, 3 Brod. & B. 257, p. 153. Haigh V. Jones, 1 Dowl. & L, 81; 6 Scott N. B. 695; 5 M. & G. 634, p. 179. Haines v. Galbraith, 43 Ind, 309, p, 327. Hall V. Aver, 9 Abb, Pr. 220, p. 623. Hall V. Ashurst, 3 Myers, 420, pp. 136, 231. V. Bennett, 2 Sim. & St. 78, pp. 178, 179. Hall, Ex parte, Cowie, 7 Moore, 437, p. 174. Hall V. Gird, 7 Hill, 586. p. 223. V. Lover, 1 Hare, 571, p, 608, (', Ody, 2 Bos. & P. 28, pp. 628, 608. V. Renfro, 3 Met. (Ky.) 51, p. 228. V. Wood. 9 Gray, 60, p, 579, V. Washington Co., 2 Greene, 473; 1 Mann, (Mich,) 461. p. 558. V. Williams, 6 Pick. 232, p, 356, V. Hallett. 1 Cox, 134; 2 Inst. 208; pp, 459, 460. Hall, In re, 2 Jur, N, S. 1233, p, 162, Haller v. Worman, 9 Week. R, 348, p. 53. Hallett )), Oakes, 1 Curt, 196, pp. 549, 557. Halliday v. Lawes, 4 Scott, 475, 3 Hodges, 130, p. 626. 652 TABLE OF CASES. Hallowell's Case, 3 Dall. 460, pp. 54, 81. Halloway v. Lawe, 7 Port. 488, pp. 580, 590. Hamilton v. Incledon, 4 Brown Pari. C. p. 619. V. Mott, Law K. 16 Eq. 112, pp. 288, 315. V. People. 29 Mich. 183, p. 315. V. "Wright, 37 N". Y. 502, pp. 343 346 355 Hamlin v. McCaliil, Clarke Ch. 249, p. 360. Hammond v. Thorpe, 1 Cromp. M. & E. 64, pp.345, 361, 368,140. Hamsher v. Kline, 57 Pa. 397, p. 457. Hancock, Ex parte, 2 Dowl. N, S. 54, pp. 91, 94. Hancock v. Pico, 47 Cal. 160, pp. 579. Handelev v. Statelor, 6 Litt. 186, pp. 346, 370, 371. Handridge v. De La Grouse, 10 Jur. 1096; 8 L. T. 163; 16 Law J. Com. P. 85; 3 C. B. Eep. 742, pp. 328, 363. Handy v. Collett, 7 D. P. C. C. 599, 3 Jur. 870; 2 W. W. & H. 63, p. 431. Hanlon v. Murray, 12 I. E. C. L. 161, 519. Hanson v. Harrison, 2 Esp. 555, pp. 44. V. Hoitt, 14 N. H. 56, pp. 379, 381 391. ... Eeece, 3 Jur. N. S. 1204, p. 614. Harbin v. Darby, 28 Beav. ,325; 6 Jur. N. S. 906; 29 Law J. Ch. 622; 8 Week. E, 512, p. 464. Hardenbergh v. Thompson, 1 Johns. 61, p. 436. Harding v. Burkess, 6 March, 228, p. 82. Hardwickt). Chandless, 2 Strange, 1138, p. 248. Hardy v. Keeler, 56 111. 152, pp. 244. Hare, Ex parte, 3 Dowl. 600, p. 160. Haring v. Cloberry, 1 Phila. 91, pp. 261, 315. Harkness v. Farley, 11 Me. 491, p. 2.34. Harndorn, In re, 9 Dowl. 970, p. 148. Harnurt). Watson, 8 Greenl. 286, p. 235. Harper v. Harvey, 4 W. Va. 539, pp. 402, 403. V. Williams, 4 Q. B. 219, p. 137. Harland u.Lilienthal, 53 N. Y. 438, pp. 556, 560, 564. Harris, Ex parte, 11 Week. E. 36, p. 91. Harris v. Galbraith, 43 111. 309, pp. 343, 359. V. Hardeman, 14 How. 334, p. 356. V. Holler, 12 Law J. Q. B. 62, p. 171. V. Hill, Dowl. & E. N. P. C. 17; 3 Stock. 173. p. 298. V. Osborn, Cromp. & M. 624, pp. 335, 415, 437, 560, 491. V. Tremenhere, 2 Schoales & L. 474; 15 Ves. 42, pp. 459, 467. V. Eees, 16 Week. E. HI, p. 456. Harris In re, 1 Dowl. & L. 1018; 13 Mees. & W. 3; 8 Jur. 453; 13 Law J. Ex. 259, p. 546. Harrison, In re, 10 Beav. 67; 11 Jur. 197, p. 546. Harrison v. Turner, 10 Q. B. 482 ; 11 Jur. 817; 16 Law J. Q. B. 295, p. 541. V. Bainbridge, 4 Dowl. & E. .S63; 2 Barn. & C. 800, p. 628. V. Ward, 4 D. P. C. 39 ; 1 Har. & W. 353, p. 544. V. Jackson, 7 T. E. 207, p. 328. Harrington v. Edwards, 17 Wis. 586, p. 81. V. Binns, 3 Fost. & P. 492, pp. 477, 489, 498. V. Page, 2 Dowl. O. S. 164, p. 202. V. Jenning's Loft, 188, pp. 183, 184. Harrow v. Farrow, 7 B. Hon. 126, p. 914. Harper v. Tahomden, 1 Chit. 714, p. 219. Harshey v. Blackmarr, 20 Iowa, 172, pp. 338, 356, 359, 360, 363. Harper v. Perry, 28 Iowa, 57, pp. 458, 465. Hart V. Chapman, 2 Aik. 162, p. 625. V. Frame, 6 Clark & F. 193; S. C. 3 Lond. Jur. 550, pp. 474, 475, 483, 484, 496, 527, 450. V. Spalding, 1 Cal. 213, p. 379. Hartwell v. Hemmenway, 7 Pick. 117, T) 234 Harter v. Morris, 18 Ohio, 492, pp. 482, 483, 492, 606. Hartley v. Hitchcock, 1 Starkes Nisi Prius Eep. 801; 8 Taunt. 149, p. 623. Harvey v. Clayton, 2 Swanst. 221, pp. 257, 250. V. Mount, 8 Beav. 439, pp. 44, 517. V. State, 40 Ind. 516, p. 214. Hasleham i'. Young, 8 Jur. 338, Dav. & M. 700; 5 Q. B. 833, p. 381. Hastings v. Halleck, 13 Cal. 203, pp. 483, 497, 501, 498. V. Lusk, 22 Wend. 410, p. 207. Hatch V. Lewis, 4 Fost. & F. 407, pp. 483, 506. V. Fogerty, 40 How. Pr. 92; S. C. 10 Abb. Pr. N. S. 147, pp. 456, 460. Hawden, Ex parte, 5 Jur. 508, p. 100. Hawkes v. Cottrell, 3 Hurl. & N. 243, pp. 333, 560. Hawkins v. Edwards. 4 Moore, 603, p. 99. V. Harwood, 4 Ex. 503 ; 7 Dowl. & L. 181, pp. 489, 394, 258, 311. V. Lawless, 39 Ga. 5, p. 625. Hawley v. Cramer, 4 Cowen, 917, pp. 462, 465, 456. Haydon v. Udjun, Cro. Jac. 521, p. 99. TABLE OF CASES. 653 Hayes v. Shattuck, 21 Cal. 51, pp. 327, 343, 347. Haymes v. Cooper, 10 Jur. N. S. 303; 33 Law J. Ch. 488, p. 612, Hayne v. Rhodes, 8 Q. B. 342, pp. 477, 493. Haynes v. Ebodes, 8 Q. B. 342, -pp. 508, 518, 519, 520. Hayward, lu re, 11 Week. E. 67, pp. 44, 87, 96. Hayward v. Fiott, 8 Car. & P. 59, pp. 556. 559. Hazard v. Lane, 3 Mer. 285, p. 545. Hazelrigg v. Brenton, 2 Dowl. 525, pp. 229, 510. Hazleham v. Young, 5 Q. B. 833; 1 Dav. & M. 700, p. 416. Hazlett V. Gill, 5 Eobt. 611, p. 438. Heaoht v. Chipman, 2 Aik. 162, p. 308. Headley v. Good, 24 Tex. 232, p. ,504. Heath v. Cremlock, Law E. 15 Eq. 257, p. 312. Heaton v. Faithful, 12 Pa. 304, pp. 318, 319. Heaton's Case, 2 Barnes, 33, p. 308. Heard v. Lodge, 20 Pick. 33, p. 373. HefEermau v. Burt, 7 Iowa, 321, p. 355, Heister v. Davis, 3 Yates, 4, pp. 277, 307, 516, Held V. Jervais "Walker, Mich. 431, p. 374. Hellman v. Wheeny, 3 Eich (S. C.) 364 p 343 Hemenway w. Smith, 28 Vt. 701, p. 292. Hench v. Todhunter, 7 Har. & J. 275, pp. 327, 329, 343, 347, 368, 369. Henderson v. Haines, 5 How. 525, p. 367. Hening, Ex parte, 2 Dowl. N. S. 54, pp. 91, 94. Henly v. Bainbridge, 3 Q, B, 316 ; 2 Gale & D. 433,. p. 381. Henchey v. Chicago, 44 III. 136, pp. 611, 625. Hennen v. Bourgeat, 12 Eob. La. 522, p. .577. Henry v. Eainman, 25 Pa. 354, pp. 221, 223, 442, 455, 466. V. Snyder, In re, 40 N. Y. 560, p. 81, Henry, Ex parte, 1 Perry & D. 71, p. 95. Henry Clay v. Ballard, 9 Eob. (La.) 308, p. 595, Heold «. Hall, 2 Dowl. P. C. IfiO, p. 543. Herbert v. Alexander, 2 Call, 498, pp. 383, 388. Herronw. Bullitt. SSneed, 497, p. 421. V. Farrow's Heirs, 7 B. Mon. 126, p, 411. Hern v. Cutley, 30 How. Pr. 208; S. C. 1 Daly, 512, p. 220. _ Herrick J). Catley, 1 Daly, 512; 30 How. Pr, 208, pp, 454, 469, V. Howard, 1 W. Black. 231, p. 205. Herring v. Oloberry, 1 Turn. & Phil. 915, pp. 255, 256. ^ ^ ^^^ Hess V. Cole, 23 N. J. L. 3 Zab. 116, 345, 357. Hess V. Voss, 52 111. 472, p. 459. V. Joseph, 7 Eob. (N. Y.) 609, p. 511. Heslop V. Metcalf , 3 Mylne & C, 183, pp. 491, 522, 617, 624, Hewisonv. Guthrie, 2 Bing. (N. C.) 000, p, 621. Heyfron, Ex parte, 7 How. (Miss.) 127, pp. 69, 142, 156, Hibberd v. Knight, 17 Law J, Ex, 191, p. 299. Hickman v. Hickman. 8 D. P. C. 833; 1 Man, & G. 506, pp. 173, 183, Hicks V. Chouteau, 12 Mo. 342, p. 235. V. Morant, 3 Younge & J. 286; 2 Dowl. & G. -414, pp. 446, 448. Higbee u. Dresser, 103 Mass. 523, p. 271. Higgs' Case, Ex parte, 1 Dowl. 495, p. 157. Higgs V. Taylor, 1 Car. & K. 85, p, 311, Higgens v. Joyce, 2 Jones & L. 000, p. 246. V. Scott, 2 Barn. & Ad. 413, p. 614. Hill V. Allen, 2 Mees. & W. 283, pp. 562, 571, V. Barney, 18 N. H. 607, p. 473. V. Brinkley, 10 Ind. 102, p. 610. Hill, Ex parte, 7 T. E. 456, pp. 87, 89, 116, 136, 151, 152. Hill V. Featherstonhaugh, 7 Bing. 509; 5 Moore & P. 541, pp. 504, 506, 557 571. V. Fletcher, 5 Ex. 470, p. 137. V. Humphreys, 2 Bos. & P, 343; 3 Esp. 254, pp. 541, 543. V. Mendenhall, 21 Wall. 453, pp. 347 350 V. Mills', 2 Dowl. 696, p. 99. V. Eoe, 2 Marsh, 257 ; 6 Taunt. 231, p, 4.32, V. Eoss, 3 Dall, 331, pp, 338, 340. Hildreth v. Harney, 3 Johns. Gas. 300, pp. 427, 429. Hilleary v. Hungate, 3 Dowl. 62, pp. 82. 100. Hilliard v. Carr, 6 Ala. 657, p. 328. Hilliard, In re, 6 Dowl. & L. 919, pp. 136, 138. Hillier v. James, 1 Barnes, 37, p. 545, Hillings V. Jones, 3 Bing. 70, pp, 322, 329, Hindman ti. Macall, 3 Greene, 170, p. .356. Hinkley ». Company, 9 Minn. 53, p. 425, V. Falls, 9 Minn. 55, pp. 423, 426. Hippesley, In re, 1 H. Black. 636, p. 32. Hirshfleld v. Landman, 3 B. D. Smith, 208, pp. 327, 345, 352. Hirst V. Ingersoll, 9 Phila. 216, p. 181. V. Tolson. 2 Macn, & G. 134, p. 94, Hitchcock V. McGee, 7 Port. 556, pp. 557, 419, 420. Hoad V. Ware, 34 Ga. 328, pp. 565, 566, 567. Hoare v. Silverlock, 9 Cora. B. 22, p. 217. 654 TABLE or OASES. Hoar V. Wood. 3 Met. 197, pp. 207, 216. Hobby V. Smith, 1 Cowen, 588, p. 81. Hobson V. "Watson, 3i Me. 20, p. 611. Hoby V. Built, 3 Barn. & Adol. 350, pp. 487, 491, 494, 521, 525, 526, 527, 560. Hockenbury v. Carlisle, 5 Watts & S. 348, p. 462. Hodges, Ex parte, 1 Jur. 933, p. 160. Hodges V. Litchfield, 1 Bing. N. C. 499, p. 450. Hodgson V. Scarlett, 1 Barn. & Aid 238, pp. 47, 51, 52, 207, 216. Hodson V. Gerrall, 2 D. P. C. 264, pp. 175, 178. Hofeenberth v. Muller, 12 Abb. Pr. N, S 222 t) 379 Hofferinan v. Burt, 7 Iowa, 320, p. 377, Hoffman v. Hoffman, 46 N. Y. 30, p 353 V. Eiley, 13 Abb. Pr. 399, p, 430. V. Eowley, 13 Abb. Pr. 398, p, 218. V. Smith, 1 Caines, 157, pp 285, 292, 516. V. Stone, 31 Tex. 695, p. 356. V. V"an STostrand, 14 Abb. 331, pp. 428, 429, 430. Hoffmire v. Hoffmire, 3 Edw. Ch. 173, pp. 345, 355. Hog V. Morris, 13 Gray, 519, p. 318. Hogg V. Martin, Eiley, 156, pp. 476, 477, 486, 487, 490, 493, 527. Hoguennin v. Barclay, 14 Ves. 300, p. 467. Holbert v. Montgomery's Admrs. 5 Dana, 14, pp. 355, 410, 411. Holbrook v. Murray, 5 Wend. 161, p. 356. Holbrook' s Case, 5 Cowen, 35, pp. 382, 383. Holdgate v. Slight, 2 Lown. M. & P. 662, p. 98. Holdsworth, Ex parte, 4 Bing. IT. C. 368; 5 Scott, 170, p. 171. Holiday v. Scott, Ca. Pr. 65, p. 329. Holker v. Parker, 7 Cranch, 436, pp. 350, 375, 397, 398, 401, 404. Holland, In re, 7 Law E. Q. B. 297, p. 90, 95. HoUenbeck v. Stanberry, 38 Iowa, 325, p. 512. Hollings V. Booth, 2 Post. & F. 220, p. 570. HoUington, Ex parte, 43 Law J. Ch. 99, pp. 415, 489. HoUingworth v. Duaine, Wall. 141, p. 184. Hollis V. Claridge, 4 Taunt. 809, pp. 607, 613, 614, 616. HoUoway v. Laide, 7 Port. 488, p. 164. Holmau v. Kimball, 22 Vt. 555, p. 291. V. King, 7 Met. 384, p. 503. Holmes v. Barbin, 15 La. An. 553, ^3. 261. Holmes v. Baddeley, 1 Phil. 476, p. 292. V. Peck, 1 E. 1. 242, pp. 472, 473, 483. Holmes r. Penny, 9 Ex. 584; 2 Car. Law Eep. 100, 4 Law. J. Ex, 132, pp. 50, 503, 575. Holmes v. Eogers, 13 Cal. 191, pp. 343, 398. Holt V. AUoway, 2 Blackf. 108, p. 350. V. Squire, Eyan & M. 282, pp. 389, 391 V. Vincent, 4 Taunt. 452, p. 557. Hood V. Fahnestock, 8 Watts, 489, p. 407. Hooker v. Axford, 33 Mich. 433, p. 454. Hooper v. Harcout, 1 H. Black. 534, p. 270. V. Zill, 1 Doug. 192, p. 544. Hoopes V. Burnett, 26 Miss. 428, p. 445. Hopewell v. Amwell, 2 Halst. 4, pp. 558, 608, 610. Hopkinson v. Smith, 7 Moore, 337; 1 Bing. 13, pp. 43, 100, 444, 570. Hopkins v. Mallard, 1 Greene, 117, p. 569. V. A\'illard, 14 Vt. 474, p. 410. Hopwood V. Adams, 5 Burr. 2660, p. 99. Hopping V. Quinn, 12 Wend. 519, pp. 476, 479, 486, 489, 493, 497, 506, 556, 558, 573. Hornell v. Kinney, 1 How. Pr. 105, p. 234 Horsfall, Ex parte, 7 Barn. & C. 528; Man. & E. 306, pp. 172, 621. Hortop, Ex parte, 12 Ves. 352, p. 230. Hoskins v. Phillips, 16 Law J. N. S. Q. B. 333, pp. 139, 236, 237, 363, 523. Hotcher v. State, 18 Ga. 460, p. 211. Hotchkiss (I. Leroy, 9 Johns. 142, pp. 562, 565, 566. Hough V. Edwards, 1 Hurl. & N. 171, p. 611. Houghton, Ex parte, 1 Glyn & J. 14, p. 174. Hounston v. Eoberts, 1 Barnes, 18, pp. 182, 183. House V. Park, 2 Term E. 376, p. 613. Houston V. Mitchell, 14 Serg. & E. 507, p. 509. V. Frazier, 8 Ala. 81, p. 514. Houx V. Eussell, 10 Mo. 246, pp. 514, 515. Hover v. Heath, 3 Hun. 283, p. 515. Howard v. Osceola, 22 Wis. 453, p. 615. V. Smith, 33 N. Y. Superior Court E. 124, p. 358. Howdon, In re, 9 Dowl. 970, p. 152. How V. Lawrence, 2 N. J. 99, p. 382. Howell r. Baker, 4 Johns. Ch. 118, pp. 456, 462, 464, 465, 469. V. Commonwealth, 4 Leigh, pp. 213, 588. V. Harding, 8 East, 362, pp. 608, 628. V. Bansom, 11 Paige, 538, pp. 451, 452, 458, 462, 465, 468. (.. Young, 5 Barn. & C. 259, pp. 44, 447, 449. 519, 520, 528, 530. Howell's Heirs i'. McCreery's Heirs, 7 Dana, 388, p. 459. Howes V. Martin, 1 Esp. N. P. C. 161, p. 563. Howland v. Ealph, 3 Johns. 20, p. 184. TABLE OF CASES. 655 Hubbard, Ex parte, 1 D. P. C. 438, p. 87. Hubbard v. Phillips. 2 Dowl. & L. 704; 13 Mees. & W. 703, pp. 137, 345, 362, 368, 369, 489, 508, 523. Hudson ('. Hawley, 1 Cromp. & J. 373, p. 137. V. Johnson, 1 Wash. 10, p. 374. II. Mitchell, 14 Serg. & E. 307, pp. 399, 404. ■ Huges V. Holliugsworth, 1 Murph. 146, p. 376. V. Mayor, 3 T. E. 275, p. 134. Hughes, Ex parte, 5 Barn. & Aid. 482, pp. 136, 137, 139. 482, 232. Hughes V. Boyce, 2 La. An. 803, p. 526. V. Garnous, 6 Beav. o.'52, p. 256. V. Mayre, 3 Durn. & E. 275, p. 620. II. Mulvey, 1 Sand. 92, p. 563. V. Scirace, 2 Atk. 173, p. 47. Hulls c. Lee, 11 Jur. 891; 10 Q. B. 940, p. 225, Hull V. Lyon, 27 Mo. 670, pp. 271, 280. Humphrey v. Browning, 46 111. 476, p 610. II. Cunning, 5 Wend. 90, p 201. V. Harvey, 1 Bing. N". C. 62. pp. 562, 100. Huntington v. Bumnell, 3 Day, 390, pp. 482, 509, 528. Hunter v. Aitkins, 3 Mylne & K. 113, pp. 452, 465. Hunter v. Coldwell, 16 Law J. Q. B. N ft. 274, pp. 475, 477, 487, 488, 490, 494, 497. Hunter, Ex parte, 2 W. Va. 122, pp. 68, 81. Hunter v. Neck, 3 Man. & G. 183 ; Gibb 187, pp. 204, 340. Huntley v. Bulwer, 6 Bing. N. C. 511 pp. 494, 506, 557, 571. V. Company, 1 Fost. & F. 211, p. 473. Hunt c. Blaquire, 4 Bing. 388, p. 220. V. McGlanahan, 1 Heisk. 503, pp. 606, 625. V. Printup, 28 Ga. 297, p. 231. V. Slate, 49 Ga. 225, p. 215. ti. Van Bomhost, 1 Md. 504, p. 262 Hurd 11. Moring, 1 Car. & P. 372, pp. 306, 309, 310, 319, 383, 399. Hurst V. Durnell, 1 Wash. 438, p. 553. HuBsey v. Jordon, Doug. 381, p. 203. V. Welby, Sayers, 218; Cro Eliz. 117; 2 Ld. Eaym 1048, pp. 423, 436. Huston ii. Mitchell, 14 Serg. & B. 307, pp. 383, 405, 423. Hutchings v. Gilman, 9 N. H. 359, p 512. ,^ , ,,^,,. .^ Hutchinson v. Gascoigne, Holt. JM. if 507, p. 44. V. Howard, 15 Vt. 544, pp 610, 611. V. Peters, 18 Vt. 616, pp. 610, 611, 626. Hutchins v. Hutchins, 1 Hogan, 315, p, 437. Hutley V. Hutley, Law E. 8 Q. B. 112, p. 589. Hynman v. Washington, 2 McCord, 493. pp. 150, 173. Ingle, In re, 21 Beav. 275; 1 Jur. N. S. 1059; 25 Law J. Ch. 169, p. 539. IngersoU v. Howard, 1 Heisk. 247, pp. 63, 68. V. Moore, 33 Miss. 667, p. 553. Ingraham v. Leland, 19 Vt. ,304, p. 224. ti. Richards, 2 La. An. 841, pp. 63, 68, 377. Inhabitants of Woburn v, Henshaw, 101 Mass. 193, p. 293. Inhabitants of Buckland v. Inhabit- ants, etc., 16 Mass, 396, p. 403. Ireson «. Pearman, 3 Barn. & C. 799. pp. 508, 518, 520. Irvine t). Spring,7 Eob.(N.Y. ) 293, p. 418. Irving V. Viana, 2 Younge &. J. 70, pp. 608, 610, 623. Irvinney v. Marks, 16 Mees. & W. 843, 4 Dowl. & L. 109; 11 Jur. 355; 17 Law J. Ex. 165, p. 452. Irwin V. Workman, 3 Watts, 337, p. 610. Isacson, In re, Clarke & Brooke, 8 Moore, 214, 322, p. 224. Iveson II. Connington, 2 Dowl. & E. 307, pp. 136, 137, 139, 235, 236. J. Jackson v. Bartlett, 8 Johns. 361, pp, 380, 383, 384, 424, 425, 426, V. Burtis, 14 Johns. 391, pp 259, 293, 299. V. French, 3 Wend. 337, pp 291, 418, 517, 150. V. McVey, 18 Johns. 330, pp, 286. V. Powell, 2 Johns. Cas. 67, p, 233. V. Stewart, 9 Johns. 34, pp .327, 347, 367. V. Telghman, 1 Miles, 31, p, 502. V. Wilson. 12 Johns. 317, p 415. V. Yale, 1 Cowen, 215, p. 417. Jacob V. Magnay, 12 Law J. Q. B. 93 7 Jur. 326, 183, 139. Jaoond v. French, 12 East, 317, p. 497. Jacques, In re, 2 Dowl. & E. 64, p. 224. Janeway v. Skerritt, 30 N. J. L. 97, p, 390. Jarmaine v. Hooper, 13 Law J. N. S Com. B. 63, pp. 237, 241. Jardine v. Sheridan, 2 Car. & P. 24, p. 317. Jeffreys v. Evans, 3 Dowl. & L. 52; 11 Mees. & W. 210; 14 Law J. Ex. 363, p 541. Jenkins v. Fereday, Law E. 7 Com. P. 358, p. 229. 656 TABLE OF CASES. Jenkins v. Gillespie, pp. 40i, 405. V. Williams, 2 How. Pr. 261, pp. 579, 580. Jenny v. Delesdernier. 20 Me. 183, pp. 378, 412, 415. Jennings v. Paine, 4 Wis. 358, pp. 207, 216. Jerome v. Boeram, 1 Wend. 293, p. 433. V. Bowman, 1 Wend. 393, pp. 429, 435. Jerome's Case, Cro. Car. 74, p. 147. Jeter v. Haviland, 24 Ga. 196, pp. 402, 405. Jewett, In re, 10 Jur. N". S. 814; 33 L. J. Ch, 730; 33 Beav. 559; 12 Week. E. 94, 95; 10 L. T. N". S. 256, p. 210. Jewett V. Wardleigh, 32 Mo. 110, pp. 411, 416. Johnson v. Alston, 1 Camp. 176, pp. 231, 497, 571. V. Bixby, 5 Barn. & Aid. 540, p. 312. V. Bray, 2 Brod. & B. 698, p. 203. V. Daverne, 19 Johns. 134, pp. 277, 281, 306, 319. ('. Cunningham, 1 Ala. 249, p. 557. V. Ogilby, 3 P. Wms. 227, pp. 229, 236, 240. V. Pyles, 19 Miss. 189, p. 579. V. Semple, 31 Iowa, 49, pp. 510, 511. Jolifee V. Hector, 12 Sim. 308, p. 44. V. Langdon, Ld. Eaym. 342, p. 197. Jones V. Bodeenor, 1 Ld. Ravm. 135, p. 205. V. Brown, 2 Ex. 359; 5 Dowl. & L. 716; 12 Jar. 380, p. 205. Jones, Ex parte, 3 Ad. & E. 74, p. 99. Jones V. Hunter, 21 How. 342, p. 367. Jones, In re, 1 Chit. 651, 186, p. 182. Jones V. Little, 7 Mees. & W. 423, p. 245. V. Page, 44 Ala. 657, p. 99. V. Peate, 1 Strange, 556, p. 621. V. Powell, 1 Mod. 272, pp. 247, 248. V. Pugh, 1 Pli. 96, p. 259. V. Ransom, 3 lud. 327, pp. 401, 411. V. Eeade, 5 Ad. & E. 229; 2 Har. & W. 382, p. 670. i;. Stevens, 11 Price, 235, pp. 244, 249, 500, 662. V. Walcott, 2 Allen, 247, pp. 229, 629. V. Williams, 5 Cold. 371, p. 364. Jordon v. Hess, 13 Johns. 492, p. 516. Josliu V. Cowell, 56 N'. Y. 626, p. 456. Judah V. Dyott, 3 Blaokf , 324, p. 513. V. Trustees, 23 Ind. 272, pp. 458, 503. Judson V. Etheridge, 1 Cromp. & M. 473, p. 613. V. Gray. 11 N. Y. 413, p. 234. Jupp V. Andrews, Cowp. 845, pp. 308, 309, 310. Kane v. Cook, 8 Cal. 449, p. 353. V. Haywood, 66 N. C. 1, pp. 156, 441. V. Van Vrakin, 5 Paige, 62, pp. 232, 509. Kaye v. De Mattes, 2 W. Black, 1, 323, ■p. 432. V. Denio, 7 Term. Rep. 671, p. 197. Kearns, In re, 11 Jur. 521, p. 136. Keddle, Ex parte, 4 Best. & S. 993, p. 87. Keegan v. Mowlds, 10 L. T. N. S. 822, p. 97. Keeley v. Lynch, 9 Ir. L. E. 563, p. 204 Keen'e v. Ward, 7 Dowl. & L. 334: 13 Q. B. 515; 14 Jur. 65; 19 Law J. Q. B. 46, p. 543. Kell V. Nainby, 10 Barn. & C. 205; M. & R. 76, pp. 506, 556. Keller v. Scott, 10 Miss. (2 Smedes & M.) 81, p. 380. Kellett V. Kelley, 5 I. E. Eq. 274, p. 609. Kelley, Ex parte, 62 N". Y. 178, p. 149. Kellogg V. Gilbert, 10 Johns. 220, pp, 410, 414, 424, 384, 386. V. Kellogg, 6 Barb. 116, pp. 295, 296. V. Morris, 5 Eng. 18, p. 562. V. Morris, 10 Ark. 18, p. 419, 421. Kelly, In re, 62 N. Y. 198; 59 Ibid. ( p. 233. Kemp ■«. Burt, 1 Nev. & M. 262; 4 Barn. & Adol. 424, pp. 474, 475, 482 488, 496, 615, 617. Kendry v. Hodgson, 5 Esp. 228, p. 236. Kennedy v. Brown, 13 Com. B. N. S 677, pp. 53, 384, 535. V. Green, 3 Myl. & K. 699, p 408. Kent V. Eicards, 3 Md. Ch. 392, pp .347, 377, 380. Kent, In re, 2 Car. & K. 197, p. 52. Kentucky ISank v. Cowles, 7 Pa. 543, pp. 568, 574. Kenyon v. Shred, 52 111. 382, p. 366. V. Sutherland, 3 Gilm. 99, p, 214. Keon V. Nesbit, liSausse & S. 365, p, 437. Kerby v. Chadwell, 10 Mo. 392, p. 485 Kernaghan v. Waderson, 3 Car. Law Eep. 764, p. 639. Kerr v. Kerr, 41 K. Y. 272, p. 353. Kerrisou v. Wallingborough, 5 Dowl. 605, p. 326. Ketchum, Ex parte, 4 Hill, 564, p. 184. Kev V. Vattier, 10 Ohio, 132, pp. 164, 165, 592. Keys V. Tavernier, 1 Chit. 291, p. 433. Kibbey v. Weyberg, 12 Mod. 25, p. 329. Kile V. Lumpkin, 40 Ga. 506, p. 476. Killegrewzi.Tewynard, Dyer, 25a, 230o, 363a, p. 326. TABLE OF CASES. 657 Kilway v. Kilway, Gary, 126, p. 253 Kimball & Co. v. Geary, 15 Vt. 414, p. ICimbro v. Waller, 21 Ala. 376, p. 511. Kimmill v. Bittner, 62 Pa. 203, p 512 Kingw. Archer, 2 B. C. 192: 5 Dowl. & L. 412, p. 429. I. Boddington, 8 Dowl. & E. 726, p. 254. t'. Cartee, 1 Pa. 147, p. 381. t^ Harrison, 15 East, 615, pp. 237, 241. King, In re, 8 Q. B. 129, pp. 147, 152, 155, 160. King of Spain h. Oliver, 2 Wash. C. C. 429, p. 351. King V. Pinsoneault, 6 Law R. P. C 245, p. 387. r. Pope, 28 Ala. 602, p. 419. V. Southerton, 6 East, 127, p. 141. Kirk !'. Glover, 5 Stewt. & P. 34, p. 380. Kirkham v. Whaley, 1 Ld. Raym. 27, p. 199. Kirkley v. Jones, 7 Ala. 622, p. 379. Kirwan v. Goodman, 5 Jur. 293, p. 154. Kisling V. Shaw, 33 Cal. 425, pp. 451, 452, 458, 462. Kite V. Millman, 2 Moore & S. 616, pp. 137, 139. Klingensmith v. Kepler, 41 Ind. 341, p. 151. Knight 0. Hall, 1 Bing. 142, p. 157. V. Harrison, 4 Mees. & W. 270, p. 621. Knight, In re, 1 Bing. 41, pp. 134, 139, 148. Knight V. Sawin, 6 Greenl. 361, p. 163. V. Lord Plymouth, 3 Atfc. 480, p. 456. V. Quarles, 2 Brod. & B. 102, pp. 492, 498, 499, 518, 520. Knowles v. Company, 19 Wall. 58, p. 357. Knowlton v. Plantation, 14 Me. 20, p. 343. Krause ?;. Dorrance, 10 Barr. 462, pp. 479 513 515 Kreokler'u. Thaule, 47 How. Pr. 138, pp. 427, 435. Kronschable v. Knoblauch, 21 Minn. 56, pp. 424, 385. Kyle, Ex parte, 1 Cal. 331, p. 610. Lacoste v. Roberts, 11 La. An. 33, p. 378 Laffe'rty v. Jelly, 22 Ind. 471, p. 592. Lafone v. Company, 4 Kay & J. 34, pp. 288, 391. Lagood V. Patterson, 2 Blackf. 327, p. 338 Laidl'er v. Elliott, 3 Barn. & C. 738, pp. 483, 498, 519. I^aing V. JBarclay, 3 Stark, E. 42, pp. 258 294 V. Cundale, 1 H. Black. 76. p. 219. I^ke V. Ingham, 3 Vt. 158, p. 625. Lamberson, In re, 63 Barb. 297, p. 611 Lambert v. Buckmaster, 2 Barn. & C 616, p. 614. Lambert, Ex parte, 3 Moore & P. 269, p. 94. Lambert v. People, 9 Cowen, 578, p. 163. t). Sanford, 3 Blackf. 137, pp 381, 382, 509. Lamphier v. Phipos, 8 Car. & P. 475 pp. 474, 483, 484. Lander v. Caldwell, 4 Kan. 339, p 579 Langdon v. Castledore, 30 Vt. 286, p. 438. V. Godfrey, 4 Post. & P. 445, p. 527. V. Potter, 13 Mass. 320, pp 373, 401. I'. Stapledon, 30 Vt. 285, pp. 425, 426. Langley v. Stapleton, Barnes, 40, pp. 424, 428, 432, 434. V. Warner, 1 Sand. 209, p. 446. Langsfield r. Richardson, 52 Miss. 441. p. 260. Langstraff v. Taylor, 14 Ves. 262, p. 547. Langtou v. Wood, 3 Loud. Jur. 124, p. 136. Lanis v. Barclay, 3 Stark. 48, p. 270. Lann v. Church, 4 Madd. 391, pp. 605, 608, 611, 612. Lansing v. McKillup, 7 Cowen, 416, pp. 557, 417. Laskley v. Cassell, 23 Ind. 600, p. 457. Latham v. Hyde, 1 Cromp. & M. 128, pp. 96, 557. Lathrop v. Bank, 9 Met. 489, pp. 163, 164. Latuohe v. Pachernate, 1 Salk. 86, pp. 375, 387. Law V. Ewell, 2 Cranch C. C. 144, pp. 548, 556. Law, Ex parte, 35 Ga. 285, p. 68. Lawless «. Timms, 3 Dowl. O. S. 707, p. 202. Lawrence v. Harrison, Style, 426, T>p. 423, 497, 516. V. Potts, 6 Car. & P. 428, p. 521. V. Warner, 1 Cowen, 98, p. 203. Lawson v. Bittison, 12 Ark. 410, p. 373. V. Dickinson, 8 Mod. 307, pp. 613, 615, 619. Layton v. Wood, 3 Jur. 124, p. 176. Lea V. White, 4 Sneed, 111, p. 216. Leach v. Eowler, 22 Ark. 143, pp. 457, 464. V. Strange, 3 Hawks, 121, p. 568. Leacrofft, Ex parte, 4 Barn. & Aid. 90, p. 97. Learned v. Haley, 34 Cal. 608, p. 453. Learson v, Darrington, 32 Ala. 227, p. 556. Leaver v. Whalley, 2 D. P. C. 800, p. 544. Leavitt v. Wallace, 12 N. H. 489, p. 343. Lecatt V. Salle, 3 Port, 115, pp. 451, 464, 468, 549, 553, 558, 579, 580, 602. Ledwick, Ex parte, 8 Ves. 183, p. 199. A. & C— 42. 658 TABLE OF CASES. Lee V. Ayrton, Peake, 119, pp. 43, 498, 499, 501. V. Dixon, 3 Fost. & F. 744, pp. 483, 488, 490. V. Jones, 2 Camp. 496, p. ,'i30. V. Page, 7 Jur. N. S. 7B8, p. 91. Lee, Ex parte, 2 Ves. Jr. 285, p. 614. Lee, In re. Law Eep. 4 Ch. 43, p. 445. Legard v. Foote, Finch, 82, p. 267. Legere v. Eichard, 10 La. An. 669, p. 371. Legett, Ex parte, 3 Jur, N. S. 1219, p. 94. Legg V. Brake, 1 Oliio St. 286, p. 214. Leigh's Case, 1 Munf. 468, pp. 141, 148, 74. Leisenring v. Blake, 5 Watts, 303, pp. 456, 459, 462. Le Neve v. Le Neve, 3 Atk. 650, p. 407. Lepard v. Vernon, 2 Ves. & B. 54, p. 327. Lesher v. Eossner, 3 Hun, 217, pp. 606, 625. Lessee of Flynn v. Marshall, 1 Irish Law E. O. S. 57, p. 437. Lester v. Watkins, 41 Miss. 647, p. 342. Letlihridge v. Luxmore, 1 Dowl. & R. 511; 5 Barn. & Adol. 398, pp. 539, 545. Letts, In re, 31 Beav. 488; 8 Jur. N. S. 1119; .32 Law J. Ch. 100; 11 Week. E. 15; 7 L. T. N. S. 307, p. 546. Levers v. Van Buskirk, 4 Pa. 309, p. 314. Levi V. Abbott, 4 Ex. 583; 19 Law J. Ex. 26, pp. 377, 409. Levy J). Pope, Moody & M. 410, pp. 282, 298, 309. Lewis' Case, 2 Mod. 181, p. 199. Lewis V. Collard, 14 Com. B. 408 ; 2 Com. Law Eep. 1345 ; 23 Law J. Com. P. 32, pp. 484, 503. v. Gamage, 1 Pick. 347, pp. 380, 402, 411. V. Hillman, 3 H. L. Cas. 607; pp. 457, 463, 465. V. J A , 4 Edw. Ch. 599, pp. 135, 451, 465, 468, 587. V. Kerr, 2 Mees. & W. 226; S. C. 5 Dowl. 447, p. 203. V. Knight, 1 Dowl. O. S. 261, p. 139. V. Levy, El. B. & E. 537, p. 217. V. Morgan, 3 Anstr. 769, pp. 445, 468, 548. V. Ni(jholson, 16 Jur. 1041, p. 137. V. Peck, 10 Ala. 142, pp. 421, 479, 507. D. Pennington, 20 Law J. Ch. 670, p. 317. V. Samuel, 8 Q. B. 185, pp. 506, 575, 589. V. Sumner, 13 Met. 269, p. .377. V. Tankerville, 11 Mees. & W. 109, p. 331. V. Trickey, 20 Barb. 387, p. 564. V. Walton, 4 Dowl. & K. 810, pp. 247, 350. V. Walter, 3 Barn. & 0. 138, p. 500. Lewis V. Woodruff, 15 How. Pr. 539, p. 422. V. Yale, 4 Fla. 418, p. 580. Lewellyn v. Boddeley, 1 Hare, 527, p. 9gg LeVellyn, Ex parte, 2 Dowl. N. S. 701, p. 87. ' Lichty V. Hugus, 55 Pa. 435, pp. 553, 556. Lidjierc. Birch, 9 Ves. 69, p. 199. Lightfoot V. Keane, 1 Mees. & W. 745; 2 Gale & D. 138; 16 Ves. 258, 275; 18 Ves. 282; Ves. 261, pp. 613. 617. Lilburne, In re, 4 State Tr. 1329, p. 18. Lillie V. Hoyt, 5 HiU, 399, pp. 445, 44Z. Lincoln v. Windsor, 6 Hare, 158; 15 Jur. N. S. 965; 25 Law J. Ch. 255, p. 464. Llndsey v. Jones, 23 Ala. 835, p. 598. Linsley v. Sinclair, 24 Mich. 380, p. 449. Linthcum v. Pennington, 5 Cranch C. C. 646, p. 291. Linton v. Commonwealth, 46 Pa. 294, p. 228. Lisle, In re, 11 State Tr. 322, p. 18. Little V. Kellogg, 18 Wend. 528, p. 203, V. McKeon, 1 Sand. 607, p. 228. V. Phillpotts, 8 Jur. N. S. 1175; 31 Law J. Q. te. 125, p. 625. Livermore v. Eand, 26 N. H. 85, p. 559. Livingston v. Cox, 6 Pa. 360, pp. 446, 506, 507, 523. V. EadclifE, 6 Barb. 201, p. 405. Llovd V. Hannibal E. E. Co. 53 Mo. 509, pp. 211, 214. Lockwood V. Black Hawk Co. 34 Iowa, 235, p. 377. Lockwood, In re. 9 Nott & H. 346, p. 79. Lomas v. Mellor, 5 Moore, 95, p. 628. London v. Eegor, 13 Q. B. 1, p. 96. Longw. Orsi, 18 Com. B. 610, pp. 493, 494, 497, 505, 506. Lonsdale v. Littledale, 2 H. Black. 270, p. 203. Lord, In re, 2 Scott, 131, pp. 134. 160. Lord V. Kellett, 2 Mylne & K. 1, pp. 329, 330, 344. V. Wardle, 3 Com. B. 295, pp. 429. 438. V. Wormley, Jacob, 580, pp. 615. 617, 624. Lorimer v. Hollister, 1 Strange, 693; Anon. 6; Mod. 42, pp. 329, 337. Loton c. Devereaux, 3 Bam. & Ad. 343, pp. 237, 241. Love V. Hall, 3 Yerg. 408, pp. 426, 491. V. Sheflelin, 7 Fla. 40, p. 218. Lovegrove v. Deymond, 4 Taunt. 809. pp. 428, 431, 433, 438. V. White, Law Eep. 6 C. P. 440, pp. 409, 426. Loveridge v. Botham, 1 Bos. & P. 49, p. 564. Loweu. Hutchinson, 37 Me. 196, pp. 164, 587. Lowe, In re, 8 East. 237, pp. 172, 619. Lowrv V. Griftord, 5 Oar. & P. 234, pp. 477, 479, 480, 481, 493. TABLE OF CASES. 659 Lowthert). Carleton, 2 Atk. p. 407. Lucas V. Bank, 2 Stewt. 321, p. 407. Lucas, In re, 2 Jur. N. S. 65, p. 94. Lucas V. Peacock, 8 Beav. 177, p. 612. Luntley w. Nathaniel, 2D. P. C. 51 p 52. '^ Lusk V. Hastings, 1 Hill, 656, p. 425. Luxmore v. Lethbridge, 5 Barn. & Aid. 898, pp. 44, 134. Lyddon v. Moss, 4 De Gex & J. 104; 5 Jur. N. S. 637, p. 544. Lymes v. Nipper, 12 Ad. & E. 377 p. 506. Lynch v. Coel, 13 Week. E. 846, p. 53. I'. Commonwealth, 16 Serg, & E. 368, pp. 240, 472, 475, 480, 483, 548. e. Cowell, 12 L. T. N. S. 548, p. 491. c. Stale, 9 Ind. 541, pp. 213, 215. V. A^'illiard, 6 Johns. Ch. 842, p. 549. Lynde v. Judd, 3Day, 499, pp. 295,296. Lyons, Ex parte, 1 W. W. & H. 174, p. 95. Lyons v. Gildwell, 8 Yerg. 1, p. 370. V. "Williams, 42 Ga. 168, p. 354. Lytle V. State, 17 Ark. 608, p. 587. M. Maas V. Black, 7 Ind. 202, p. 305. Macheath v. Ellis, 4 Bing. 478; 1 Moore 6 P. 513, pp. 409, 425. Macgregor, In re. Laird, 1 Ad. & E. 307, p. 292. Mackay v. Blackett, 9 Paige, 437, p. 238. V. Martin, 26 Tex. 57, p. 402, Mackenzie v. Yeo. 2 Curt. 866, p. 317. Mackey v. Ford, 5 Hurl. & N. 792, p. 216. V. Mackey, 43 Barb. 58, p. 626. MacLeod v. Wakley, 3 Car. & E. 311, pp. 368, 392. Macpherson v. Eobinson, 1 Doug. 217, pp. 427, 431, 434, 432. Madden v. Farmer, 7 La. An. 580, p. 226. Maddison v. Bacon, 5 Bing. (N. C.) 246; 7 Scott, 207; 3 Jur. 248, p. 544. Maddox v. Cranch, 4 Har. & McH. 343, p. 234. Maddux v. Bevan, 39 Md. 485, pp. 384, 396, 397, 422. Magary v. Funtis, 5 Sandf . 375, p. 401. Magennis v. Parkhurat, 3 Green Ch. 433, p. 135. Magerum v. Sandiford, 3 Br. C. C. 233, p. 545. Magruder, Ex parte, 6 Am. Law Keg. N. S. 292, p. 63. Mahoney v. Bergin, 41 Cal. 423, p. 581. Maires v. Maires, 23 Bng. Law & Eq. 22 p 344 Major V. Gibson, 1 Pat. & H. 48, pp, 579, 580, 587. ^ t> ar, Makinson, Ex parte, 18 Com. B. 661, p. 100. Maliphant, Ex parte, 7 Moore, 495, p. 97. Mallory v. Benjamin, 9 How. Pr. 419, p. 296. Manchester Bank v. Fellows, 28 N. H. 802, pp. 327, 339, 341. Manchette v. Maulers, 2 Colo. T. 169, p. 292, Mandeville v. Guernsey, 38 Barb. 225, p. 314. Mangin v. Cheeney, 1 Hill, 145, p. 184. Man V. Fairchild, 2 Keyes, 106, p. 466. Mann v. Fairchild, 3 Abb. N. Y. App. 152; 14 Barb. 548, pp. 221, 224. Mann v. Nottage, 1 Younge & J. 367n, p. 219. Manners v. State, 2 Head, 213. p. 2()2. Manning v.Wilkins, 12 L. T. 249, p. 527. Manstield v. Dorland, 2 Cal. 331, 507, pp, 628, 610, V. "Wickerson, 26 Iowa, 482, pp. 511, 515. Mant r. Smith, 4 Hurl, & M, 324; 28 Law J. Ex. 234, p. 540. Marbourg v. Smith, 11 Kan. 554, pp. 386, 397, 398. March v. Ludlum, 3 Sand. Ch. 35, p. 262. Mardis v. Shackleford, 4 Ala. 493, pp. 507, 513, 514, 515, 416. Mare v. Lewis, Ir. Law Eep. 4 Eq. 235, pp, 455, 487, 520. Margarell v. Makilwaine, 2 N. K. 509, pp. 429, 431, 435. Maris, In re, 2 Ad. & E. 582, p. 539. Markley v. Amos, 8 Eich. 468, pp. 375, 405. Marr v. Smith, 4 Barn. & Aid, 466, p. 436. Marriott v. Hertford (Marquis), 13 Jur. 636; 19 Law. J. Q. B. 526, p. 299. Marsden's Bail, 4 Dowl. P. C. 654, p. 99. Marsh r. Ellsworth, 36 How. 532 ; 1 Sweeny, 52, p. 206. u. Gold, 2 Pick. 284, 285, pp. 482, 416. V. Howe, 36 Barb. 649. p, 278, V. Keith, 1 Drew. & S. 342, p. 317. i>. Whitman, 21 Wall. 178, pp. 462, 465, 478, 482. Marshall ii. Chiffs, 4 Camp. 133, pp. 378, 389. 391, 393. V. Meeks, 51 N. Y. 140, p, 606. V. Hagel, 1 Baily, 308, pp. 509, 381. Marston v. Downes, 6 Car. & P. 381, pp. 293, 297, 300, 309. Martin v Amos, 13 Ired, 201, p, 164, V. Anderson, 21 Ga. 301, p 277. V. Anderson, 7 Ex.421; 21 Law J. Ex. 105, p, 281, V. Clark, 8 E, I, 389, p. 165. V. Hawks, 15 T. E. 405, p, 625. V. Hawks, 15 Johns. 405, p. 610. Martin, In re, 6 Beav. 237, pp. 140, 147. Martin v. Orndorff, 22 Iowa, 515, p. 211. V. Veeder, 20 Wis. 466, p. 593. 660 TABLE OF CASES. Martiuics v. Johnson, 21 N. J. L. 1 Zab. 239, p. 437. Martindale v. Falkner, 2 Dowl. & U. 600; 2 Com. B. 706; 10 Jur. 161; 15 Law J. P. C. 91, pp. 542, 562. Marvel v. Manouvrier, 14 La. An, 3, pp. 355, 364. Marvin v. EUwood, 11 Paige, 365, pp. 512, 515, 446. Marzetti v. "Williams, 1 Barn. & Adol. 415, p. 509. Masais's Case, 1 Keen, 74, p. 152. Mason v. Eing, 2 Abb. Pr. N. S. 322, pp. 451, 45T, 459, 460. V, Wtiiteliouge, 4 Bing. N". C. 622; Scott, 575, p. 377. Massie v. Mann, 17 Iowa, 131, p. 218. Masterman, Ex parte, 6 Scott, 782, p. 95. Masters v. Downes, 4 Nev. & M. 865 ; 1 Ad. & E. 31 : 3 Car. & P. 381, p. 276. Masterson v. Le Claire, 4 Minn. 163, p. 338 Matchett v. Parks, 9 Mees. & "W". 767, p. 98. Mathews, Ex parte, 1 Barn. & Adol. 160, p. 87. Mathews v. Livesly, 11 Ex. 221, p. 162. V. Eoyle, 6 Moore, 70, p. 183. V. Walwyn, 4 Ves. 119, p. 135. Mathewson v. Pitch, 22 Cal. 86, p. 163. Mathis V. Town, 62 Mo. 505, p. 485. Matson, Ex parte, 2 Dowl. & R. 238, p. 97. Matt V. Smith, 4 Barn. & Aid. 466, p. 625. Mawle V. Grubb, 1 Barnes, 200, p. 199. Maxam v. Place, 46 Vt. 434, pp. 258, 270. Maxwell, Ex parte, 4 D. P. C. 87, p. 173. Maxwell v. Owen, 7 Cold. 630, pp. 384, 415. May V. Biggenden, 24 Beav. 207, p. 544. V. Brown, 4 Dowl. & E. 670 ; 3 Barn. & C. 113, p. 250. V. Pike, 5 Do wl. O. S. 667 ; 4 Mees. & W. 197; 2 London Jur. 597, p. 435. V. Williams, 17 Ala. 23, p. 210. Maybury v. Mansfield, 16 Law J. Q. B. 102, pp. 230, 234. Mayer i'. Blease, 4 S. C. 10, pp. 382, 384. V. Foulkhead, 4 "Wash. C. C. 511, pp. 397, 399. Mayfteld v. Cotton, 37 Tex. 229, p. 214. Maynard v. Briggs, 26 Vt. 94, p. 556. Maynard's Case, 2 Wils. 232, Anon. 1 Dowl. 208; 2 Johns. Cas. 102, p. 198. Mayne v. "Watts, 3 Swaust. 93, pp. 433, 429. Mayor v. Berry, 4 Burr. 2116, p. 197. V. Puller, 3 Ala. 137, p. 79. MoAdoo V. Lummis, 43 Tex. 227, p. 511. McArthur v. Fry, 10 Kan. 231, p. 454. McCaa v. Grant, 43 Ala. 262, p. 611. McCall V. Copehart, 20 Ala. 521, p. 163. McCarver v. Nealy, 1 Greene, 360, pp. .373, 380. McConnell v. Brown, 40 Ind. 384, p. 385. McCormick v. Malin, 5 Blackf . 509, pp. 452, 458. McCrary v. Ruddick, 33 Iowa, 521, p. 561. McCrea v. Bartlett, 8 Johns. 361, p. 4ip. McCrillis v. Bartlett, 8 N. H. 569, p. 573. McCuUoch V. Maryland, 4 "Wheat. 316, p. 79. McCullough V. Guetner, 1 Binn. 214, 469, p, 337. McDonald v. Moore, 34 Tex. 384, p. 454. V. Napier, 14 Ga. 89, p. 610. ». Paige, Wright, 121, p. 558. V. Todd, 1 Grant, 17, p. 414. McDougald v. Lane, 18 Ga. 444, p. 284. McDowell V. Baker, 29 Ind. 481, p. 511. V. Milroy, 69 111. 498, p. 454. V. Potter, 8 Barr, 187, pp. 562, 446. McEgan v. Cochrane, 10 L. T. 37, p. 589. McElrath v. Dupuy, 2 La. An. 521, pp. 580, 593. McEwen v. Mazyck, 3 Rich. 210, p. 419. McParland v. Crary, 8 Cowen, 253; 6 Wend. 297, S. C, pp. 417, 506, 558, 515, 52.3. McFadou's Executor v. Martin, 3 Har. & McH. 153, p. 224. McGill n. McGill, 2 Met. (Ky.) 258, p. 417. McGregor v. Comstock, 28 N. Y. 237, pp. 625, 626. McGregor v. Keily, 2 Dowl. & L. 180; 16 Q. B. 514; 20 Law J. Q. B. 273, p. 540. McKelvay v. Jones, 2 Har. (N. J.) 345, pp. 355, 364. McKiernan !i. Patrick, 4 How. (Miss.) 333, pp. 342, 344, 349. McKinley v. Tuttle, 34 Cal. 235, p. 476. McKinzie v. Wardell, 61 Me. 136, p. 625. McKoan v. Derries, In re, 3 Barb. 196, p. 81. McLain ti. Watkins. 43 HI. 24, p. 425. !'. Williams, 8 Yerg. 230, pp. 558, 569, 585. McLaughlin's Case, 5 Watts & S. 272, pp. 130, 142. McLellan v. Longfellow, 32 Mo. 494, pp. 254, 267. MoMahon v. Smith, 6 Heisk. 167, p. 568. MoMath !). The State, 55 Ga. 306, p. 213. McMioken v. Perrin, 18 How. 507, p. 222. McMuUan v. Birch, 1 Binn. 178, p. 216. McNab V. Lockhart, 18 Ga. 495, pp. 211, 214. McPherson )i. Eathbone, 7 Wend. 216, p. 293. Mc Williams v. Hopkins, 1 Whart. 276; 4 Rawle, 392, pp. 476, 480, 498, 558. Meacham v. Dudley, 6 Wend. 514, pp. 362, 364. Meath v. Winchester, 10 Bligh, 375, p. 292. TABLE or CASES. 661 Meek v. Whalley, 1 Bing. N. C. 59, p. 100. >- > f Meggs V. Binns, 2 Bing. N. C. 625, pp. 135, 176. Menzies v. Eodrigues, 1 Price, 92 ; 1 Sid. 31, pp. 329, 437, 526. Mercer v. King, 1 Fost. & F. 490, pp. 483 484. ' ^'^ Merchants' Bank v. Marine Bank, 3 Gill, 98, p. 389. Merle v. Moore, 2 Car. & P. 275, pp. 270 311, 312, 315, 321. Merrinton r. A. Beckett, 2 Barn. & C 81, pp. 161, 231, 526. Merritt, In re, 5 Paige, 125, p. 150. Merritt v. Lambert, 10 Paige, 352, pp 140, 173, 176, 549, 558, 579, 580, 581. V. Lansing, 10 Paige, 352, p. 135. c. Putnam, 7 Minn. 493, p. 485 Merri-sveather v. Mellish, 13 Ves. 161 pp. 428, 429, 622. Meux V. Lloyd, 2 Com. B. JST. S. 409, pp 135, 179. Mexico V. De Arangoiz, 5 Duer, 643, p 347. Meyer's Assignees v. Sexton, 2 Stark 274. p. 283. Michon v. Gravier, 11 La. An. 596, pp 565, 566. Middleton v. Hill. 1 Maule & S. 240; 1 Dowl. & R. 168, pp. 608, 628. Miers v. Evans, 3 Jur. 170, p. 172. Milan v. State, 24 Ark. 346, p. 285. Milburn v. Codd, 1 M. & Eob. 238; 7 Barn. & C. 419, p. 570. Miles V. Irvin, 1 McCord Cb. 524, pp, 451, 456, 462, 465, 468. Millard, In re, 1 D. P. C. 140, p. 172. Miller v. Alter, 3 Ex. 799; 13 Jur. 431; pp. 617, 614. r. Beal, 26 Ind. 234, pp. 553, 556. V. James, 8 Moore, 208, p. 137. V. Scott, 21 Ark. 396, p. 373. r. "Weeks, 22 Pa. 89, pp. 254, 269. )'. Wilson, 24 Pa. 114, pp. 494, 496, 517, 518, 520. Mills t'. Duryee, 2 Am. Leading Cases, p. 338. Mills, In re, 1 Mich. 392, pp. 141, 148, 150, 157. Mills V. Mills, 26 Conn. 213, pp. 441, 451, 465, 587. V. Oddy, 6 Car. & P. 728, p. 414, Mil ward v. Temple, 2 Stark, 375; 1 Camp. 275; pp. 378, 389, 391, 392. Milyard's Case, 1 Mod. 118, p. 658. Minet v. Morgan, Law K. 8 Ch, 361, pp- 254, 275, 285, 313. Mitchell V. Bromberger, 2 Nev. 346, p, 284. V. Cotton, 3 Fla. 136, pp. 382, 394 Mitchell's Case, 12 Abb. Pr. 264, p. 293. Mitchell V. Milhoun, 11 Kan. 617, p. 628. V. Oldfield, 4 T. R. 123, pp. 607, 610, 627. Mohawk Bank v. Burrows, 6 Johns. Ch. 317, p. 628. Moir V. Mudie, 1 Sim. & St. 282, p. 717 Monro v. Buifington, 26 Miss. 184, p. 441. Monson v. Hawley, 30 Conn. 51, p. 411 Montesqien v. Sandy, 18 Ves. 313, pp. 451, 457,463,467,468. Montgomery v. Deveraux, 7 C. C. & F. 188, pp. 480, 497, 509. V. Morris, 32 Ga. 173, p. 284. V. Pickering. 116 Mass. 227, pp. 258, 287. Montrion v. Jeffervs, 2 Car. & P. 113 pp. 471, 482, 483, 488, 501, 607. Moody's Case, Barnes, 42, pp. 166, 198. Mooney v. Lloyd, 5 Serg. & E. 412, pp. 548, 549, 558, 581. Moore v. Angell, 11 Jur. 485, pp. 609, 625. V. Booth, 3 Ves. 350, p. 199. r. Bracken, 27 111, 23, pp. 462, 465, Moore, Ex parte, 64 N. C. 202, pp. 140. 146. Moore v. Froud, 1 Jur. 653, p. 570. V. Hall, 13 Week. R. 83; 11 Law T. N. S. 274; 17 Com. B.N. S. 760, p. 576. V. Terrill, 4 Barn. & Ad. 870, p. 264. Mordecai v. Solomon, Sayers, 172, pp, 620, 526. 603, 135, 437, 491. Morel V. New Orleans, 11 La. An. 485, p. 568. Moreland v. Palsey, 2 H. Black. 441, pp. 627, 608. Morgan v. Brown, 12 La. An. 159, p, 598. V. Currie, 3 Marsh. 294, p. 558. V. Lewes, 4 Dow. 29, p. 468. V. Roberts, 38 111. 65, pp. 554. 565, 422, 507, 600, 602. I'. Shaw, 4 Madd. 57, p, 297. V. Taylor, 5 Com. B, N. S. 563; 6 Jur. N. S, 791; 28 Law J, Com, P. 178, p. 588. V. Thorne, 7 Mees. & W. 400, pp. 363, 369. Morie v. Murdie, 1 Stu. 312, pp. 429, 433. Mornington v. Mornington, 2 Johns. & H. 697, p, 308, Morrill v. Graham, 27 Tex. 646, pp. 482, 500. Morris, Ex parte, W. W. & D. 59; 1 •Jur. 151, p, 173. Morris v. Grier, 76 N. C. 410, p. 404. Morris, In re, 2 Ad. & E. 582, p. 176. Morris v. James, 2 Lond. Jur. 842, p. 139. V. Marcy, 4 Ham. 83, p, 184. V. Palmer, 36 N. H. 123, p. 573, Morrison v. Hill, 42 N. H. 345, p. 573. Morrow v. Parkman, 14 Ala. 769, p. 226. Morse v. Porter, 13 Serg. & R. 100, p. 234. Mosely, In re, 15 Week. E. 976, p. 615 Moses, Ex parte, 9 Law R. Q. B. 1, pp 89, 96. 662 TABLE or CASES. Mosness, In re, 39 Wis. 509, p. 81. Moss, In re, .35 Beav. 526. p. 615. Mostyn v. Mostyn, Law Rep. 5 Ch. Ap 457, pp. 384, 420. Mott V. Foster, 45 Cal. 72, p. 385. V. Harrington, 12 Vt. 199, pp. 465. 598, 600. Mould V. Roberts, 4 Dowl. & R. 529, 719, pp. 137, 183. Moule, Ex parte, 5 Madd. 462, p. 606. Moulton V. Bennett, 18 Wend. 586, p, 174. Monlton v. Bowker, 115 Mass. 36, pp 378, 401. Mountfordt). Scott, 1 Turn. & R. 274, p. 617. Mowry v. Chase, 100 Mass. 79, p. 228. Moxon, Ex parte, 1 Dowl. O. S. 6, p. 172. Moye V. Cogdell, 69 N. C. 93. pp. 401 404. M'Tavish v. Dunning, Anth. 82, 113, p 281. Mudry v. Newman, 1 Cromp. M. & R. 402, pp. 361, 363, 369. Mulford V. Muller, 3 Abb. N. Y. App 3,30, p. 278. Mullen V. Guest, 6 Tex. 275, p. 165. Mulligan v. MoDonough, 2 Law T. IST. S. 136, p. 51. Mumford v. Murray, 1 Hoplt. 369, pp. 428, 429, 430, 434. Munnikuyson v. Dorsett, 2 Har. & G. 374, pp. 236, 330, 523. Munson v. Washband, 31 Conn. 303, p. 573. Murphy v. Cunningham, 1 Anst. 271 p. 628. Murphy v. The State, 6 Ind. 490, p. 213. Murray, Ex parte. Turn. & R. 56, p. 97 Murray v. House, 11 Johns. 464, p. 381 Myers v. Crockett, 14 Tex. 259, pp. 603. 653 Myers, In re, 8 Q. B. 515, pp. 96, 161. Mygatt V. Wilcox, 45 N". Y. 306, pp. 424, 554 579. Mynn v. joliffe, 1 Moody & R. 327, pp. 254, 273. N. ISTaglee v. Ingersoll, 7 Pa. 185, p. 404. Narraguagus v. Wentworth, 36 Me. 339, p. 422. Nash, Ex parte, 6 Scott N. R. 695, p. 91. Nash V. Goode, 9 D. P. C. 929, p. 176. V. Swinburne, 3 M. & G. 630; 4 Scott N. S. 326, pp. 477, 493. Natlian v. Giles, 5 Taunt. 558, p. 614. Nave V. Baird, 12 Ind. 318, pp. 373, 472, 504. Neal, Ex parte, 1 Buck, 111, p. 548. Neal D. Holden, 3 Dowl. 493, p. 152. Neale v. Postlethwaite, 8 D. P. C. 100, p. 547. Needham v. Dowling, 15 Law J. Com. P. 9, pp. 61, 216. Neil V. Staten, 7 Heisk, 290, p. 628. I Nelson v. Cook, 19 111. 440, p. 413. V. Wilson, 6 Bing. 586, pp. 625, 629. Nesbit, Ex parte, 2 Schoales & L. 279, pp. 612, 613, 614, 615, 616. Nesbitt V. Lockman, .34 N. Y. 167, pp. 451, 460. Newbaker v. Alricks, 5 Watts, 183, p. 610. Newbert v. Cunningham, 50 Me. 231, p. CIO. Newberry, In re, 4 Ad. & E. 100; 5 Nev, & M. 419: 1 Har. & W. 376, p. 175. Newben-y v. Lee, 3 Hill, 523, p. 241. Newcastle v. Bellard, 3 Me. 369, p. 514. V. Kindersley, 8 Ves. 363, p. 44. Newcomb v. Peck, 17 Vt. 302, p. 343. V. Dewey, 27 Iowa, 381, p. 364. Newfield v. Copperman, 15 Abb. Pr. N. S. 360, p. 206. New Hampshire Co. v. Noyes, 32 N. H. 345, p. 573. New V. Jones, 1 Macn. & G. 668, p. 464. New Kirk v. Cone, 18 111. 499, pp. 165, 586, 595. Newman v. Brodey, 1 Dall. 241, p. 228. Newman, In re, 30 Beav. 196, p. 5.39. Newman v. Payne, 2 Ves. Jr. 199, pp. 445, 450, 451, 452, 457, 468. I'. Washington, Mart. & Y. 79, p. 549. V. Harrison, Ca. Pr. C. P. 140, p. 199. Newton v. Chaplin, 10 Com. B. 356, p. 52. V. Harland, 4 Scott N. S. 769, pp. 428, 624. V. Harland, 8 Scott, 70, p. 52. V. Judges, 4 Law R. P. C. 18, p. 135. V. Porter, 5 Lans. 416, p. 615. ;;. Rowland, Ld. Raym. 533; 12 Mod. 316, p. 200. Nicholas v. Hayter, 2 Ad. & B. 348, p. 539. Nicholl V. Nicholl, 16 Wend. 445, pp. 627, 628. Nichols, Ex parte. 2 Dowl. N. S. 423; T London Jurist, 374, p. 172. Nichols, In re, 2 Dowl. N. S. 423, p. 95. Nichols V. Dennis, R. M. Charlt. 188, p. 424. V. Scott, 12 Vt. 47. pp. 553, 556. I'. Wilson, 2 Dowl. N. S. 1031; 12 Law J. Ex.266; llMees. & W. 106, pp. 625, 560, 670, 576 .'. Wilson, 11 Mees. & W. 106; 12 L. T. N. S. 266, pp. 437, 521. Nicholson v. Styles, 2 Ex. 213, p. 52. Nightingale v. Railroad, 2 Sawy. 339, pp. 385, 386, 407. Niles, In re, 5 Daly, 465, p. 148. Ninety-nine Plaintiffs v. Vanderbilt, 1 Abb. Pr. 193, pp. 312, 328, 344, 345, 346. TABLE or CASES. 663 Nisbet V. Lawson, 1 Ga. 275, pp. 483, 510, 511, 527. Nixon V. Hewitt, 10 Moore, 270, p. 97. )). Moyoh, 1 Moody & R. 76, p. 173. ■V. Phelps, 3 "Wils. 198, pp. 503, 556 572 Noble V. Gold,' 1 Mass. 410, p. 356. Noel V. Hart, 8 Car. & P. 230, pp. 563, 570. Norfolk, Duke of. Trial of, 1 St. Tr. 965, p. 18. Norris i'. Bacon, 1 Vern. 312, p. 558. )'. Douglas, 5 N. J. L.; 2 South. 817, p. 347. Northfleld v. Orton, 1 D. P. G. 415, p. 137. North Missouri Eailroad Co. v. Ste- phens, 36 Mo. 150, p. 392. Northwestern Co. v. Sharp, 20 Eng. L. & E. 555, pp. 473, 483, 526. Norton v. Cooper, 3 Smale & 6. 375, pp. 140, 345, 364, 507. V. Curtis, 3 Dowl. Pr. 245, p. 99. Nunez v. Modgliani, 1 H. Black. 217, pp. 608, 628. Oakley r. Davis, 16 East, 82, p. 242. Gates v. Woodward, 1 Salk, 87, pi. 6, p. 427. O'Barr v. Alexander, 37 Ga. 195, p. 483. O'Brien '•. Cantwell, 12 Ir. Ch. R. 22, p. 53. V. Lewis, 9 Jur. N. S. 528; 32 Law J. Ch. 569; 11 Week. E. 318; 8 Law T. N. S. 179, p. 464. O'Dea V. O'Dea, 1 Schoales & L. 315, p. 328. Odell V. Odell, 1 Irish Ex. 81, pp. 363, 369. Odes V. Woodward, 2 Ld. Kaym. 849, p. 354. Odlin V. Stetson, 17 Me. 244, pp. 526, 527. O'Flynu v. Eagle, 7 Mich. 306, p. 343. Ogden V. Des Arts, 4 Duer, 275, p. 580. !' Hughes, 2 South, 718; 5Wend. 90, pp. 199, 204, 198. V. Saunders, 12 Wheat. 266, p. 69. Ogle V. Story, 4 Barn. & Adol. 735; 1 Nev. & M. 734, pp. 613, 614, 615, 616. -O'Hara v. Brophy, 24 How. Pr. 379, pp. 496, 507, 521, 523. Ohio V. Chapman, 11 Ohio, 430, pp. 141, 155 Oldham v. Hand, 2 Ves. 259, pp. 450, 467. J'. Sparks, 28 Tex. 425, pp. 476, 510. Oldknow's Case, 6 Best & Smith, 703, p. 155. „ Oliver, In re, 4 Nev. & M. 471; 1 Har, & W. 79, p. 443. In re, 2 Ad. & E. 629, p. 152. Oliver v. Pate, 43 Ind. 132, p. 293. V. Thomas, Ld. Raym. 2, p. 562. Oppenheim v. Harrison, 1 Burr. 20, p. 99. Oppenshaw v. Whitehead, 9 Ex. 384; 2 Car. Law Rep. 553; 23 Law J. Ex. 97, p. 644. Orcutt V. Pettit, 4 Den. 233, pp. 224, 562. Ormerod v. Tate, 1 East, 464, pp. 605, 608, 610. Orphan Asylum v. Miss. Mar. Ins. Co. 8 La. 185, p. 583. Orton V. McCord, 33 Wis. 205, p. 270, Osbaston's Case, 30 Eliz, Cro. Car. 74, p. 147. Osborne, In re, 25 Beav. 353; 4 Jur. N. S. 296; 27 Law J. Ch. 632, p, 539. Osborn v. Bank, 9 Wheat. 738, pp. 329, 334, 338, 343, 350, 562. Ottley V. Gilby, 8 Beav. 602, p. 444. Ouston V. O'Bryan, Barnes, 145, p. 605. Owen, Ex parte, 6 "Ves. 11, p. 166. Owen V. Knight, 4 Bing. N. C. 54, pp. 621, 624. V. Ord, 3 Car. & P. 349, pp. 326, 330. o. Scales, 2 Dowl. N. S. 304; 10 Mees. & \V. 657; 6 Jur. 1000; 12 Law J. Ex. 26, p. 539. Owings V. Hall, 9 Peters, 629, p. 419. Oxenham v. Lemon, 2 Dowl. & E. 461, pp. 331, 641. V. Esdaile, 3 Barn & C. 225, pp. 614, 622. Oxfordshire, In re, 2 Car. & K. 200, p. 52. P. Paddock J). Beebe, Cole, 135; 2 Johns. Cas. 117, p. 417. V. Colby, 18 Vt. 485, p. 420. Padmore v. Lawrence, 11 Ad. & E. 380, p. 207. Paget V. Chambers, 5 Bing. 630, pp. 136, 152. Paige, Matter of, 1 Bing. 160, pp. 86, 136, 152. Paige V. Stubbs, 39 Iowa, 537, pp. 458, 460. Paine v. Hall, 18 Ves. 475, p. 467. Paine, In re, 5 Com. B. 407, p. 647. Painter ti. Abell, 11 Week, R. 651; 8 Law T. N. S. 287; 33 Law J. Ex. 60, p. 467. Painter v. Linsell, 8 Scott, 453; 8 D. P. C. 250, p. 539. Palmer.)). Ashley, 3 Pike, 76, p. 483. V. Cohen, 3 Barn. & Adol. 966, p. 406. Palmer, In re, 1 Har. & W. 55, p. 155. Palmer v. Reiffenstein, 1 Man. & G. 94, p. 335. Pane v. Purcell, 1 Browne, 348, p. 155. Parker v. Butler, 2 Wm. Black. 780, p. 184. 11. Carter, 4 Munf. 273, pp. 254, 291, 305, 418. 664 TABLE OF CASES. Parker v. Gill, 10 Jur. 109f), p. 539. V. Marshall, Loftt. 271, p. 152. V. Kolls, 14 Com. B. 691, pp. 483, 484, 487, 490, 508. Parkhurst v. Lawton, 2 Swanst. 216, pp. 262, 266. Parkins v. Hawkshaw, 2 Stark. 239, pp. 290, 378, 388. Parmeter v. Eeed, 1 W. W. & H. 575, p. 331. Parry v. Collins, 1 Esp. 399, pp. 250, 499 V. Owen, Amb. 109; 5 Sim. 667, p. 455. Parsons v. Gill, 1 Salk. 88, pi. 8; 1 Leon. 9, p. 340. Partington v. Bailee, 5 Sim. 667, p. 455. V. Woodcock, 2 Dowl. O. S. 550, p. 202. Partridge, Ex parte, 2 Mer. 500, 501, pp. 545, 620. Paschall, In re, 10 Wall. 483, pp. 428, 430, 438. Pasmore v. Birnie, 2 Stark. 59, p. 571. Pater, Ex parte, 5 Best & Smith, 299, p. 51. Paterson, In re, 1 Dowl. O. S. 468, p. 136. Patrick, Ex parte, 7 Jur. 993, p. 96. Patten v. FuUerton, 27 Me. 58, p. 405. V. Moore, 29 N. H. 163, p. 306. V. Wilson, 34 Pa. 299, p. 428. V. AVilson, 10 Casey, 299, pp. 587, 598. Payne r. Chute, 1 Roll. 365; Anon. 12 Mod. 440, p. 375. Pearce r. Pearce, 16 Law J. Oh. 153, pp. 256, 258. r. Whale, 5 Barn. & C. 39, p. 562. Pearse v. Pearse, 1 De Gex & S. 24, p. 292. Pearson v. Humes, Cart. 230, p. 163. V. Morrison, 2 Serg. & E. 20, p. 404. V. Sutton, 5 Taunt. 364, pp. 171, 621. Peate v. Dicken, 1 Cromp. M. & E. 422; 3 Dowl. 171, p. 562. Pechell i;. Watson, 8 Mees, & W. 691, pp. 589, 562. Peck V. Williams, 13 Abb. 68, pp. 254, 296. Pemberton, Ex parte, 18 Ves. 382, pp. 612, 613, 616, 617. Pender, In re, 2 Ph. 69; 10 Jur. 891, p. 539. Pendexter v. Vernon, 9 Humph. 84, p. 401. Penniman v. Patchem, 5 Vt. 346, pp. 374, 383, 402. Pennington v. Nave, 15 Ind. 323, p. 586. V. Yell, 6 Bng. 212, pp. 472, 479, 484, 487, 490, 494, 495, 498, 502. Penuywit v. Foote, 27 Ohio St. 600, pp. 357, 358. Penobscot Bar v. Kemble, 64 Me. 140, pp. 140, 148. Penobscot Co. v. Lampson, 4 Shepley, 202 n 343 People v. Alison, 68 111. 151, pp. 156, 178. V. Anderson, 44 Cal. 65, p. 214. V. Atkinson, 40 Cal. 284, pp. 316, 317. ».. Barker, 56 111. 299, pp. 150, 156, 272. ... Blakely, 4 Parker Cr. C. 176, p. 278. u. Brotherson, 36 Barb. 662, pp. 510, 513, 515. V. Bowling, 55 Barb. 197, p. 155. V. Fletcher, 2 Scam. 486, p. 161. V. Ford, 54 111. 520, pp. 148, 178. V. Hallett, 1 Colo. 352, p. 149. V. Hardenburgh, 8 T. E. 355, p. 625. V. Harris, 23 Cal. 127, p. 485. V. Harvey, 41 111. 277, pp. 156, 158. V. Justices, 1 Johns. Cas. 181, pp. 142, 143. V. Keenan, 13 Cal. 501, p. 213. V. Mariposa Co. 39 Cal. 683, pp. 328 348 V. Marsh, 3 Cowen, 334, p. 233. V. Mayor, 11 Abb. Pr. 66, pp. 379, 382, 392. V. Montgomery, 18 Wend. 633; 7 Paige, 615, pp. 237, 241. V. Nevins, 1 Hill, 154, pp. 160, 184. . V. Palmer, 61 111. 255, p. 152. V. Rogers, 2 Paige, 103, p. 135. V. Sanborn, 1 Scam. 123, p. 497. V. Sheriff, 7 Abb. Pr, 96, pp. 296, 307. V. Smith, 3 Caines, 221, p. 150. V. TefEt, 3 Cowen, 340, p. 184. V. Tioga C. P. 19 Wend. 73, p. 626. V. Tryon, 4 Mich. 665, p. 178. V. Turner, 1 Cal. 148, pp. 142, 149, 161. V. Walbridge, 6 Cowen, 516; 3 Wend. 120, pp. 166, 222, 466. ■0. Willson, 5 Johns. 368, p. 150. Penderpleath v. Frazier, 3 Ves. & B. 176, p. 548. Pepper v. George, 51 Ala. 190, p. 407. Peppercorn, In re, 1 L. K. C. P, 473, p. 89. Percy, In re, 36 N, Y, 651, pp. 140, 143, 148, 150, 152. Peries v. Aycinena, 3 Watts & S. 64, p. 422. Ferine v. Dunn, 3 Johns. Ch. 508, p. 163. Perkins u. Bradley, 1 Hare, 23, p. 611. Perring v. Eebutter, 2 Moody & E. 429, p. 536. Perrins v. Hill, 2 Jur. 858, p. 506, Perry v. Clark, 5 How. (Miss.) 502, p. 524. V. Fisher, 6 East, 549, pp. 431, 433. iJ. Lord, 111 Mass. 504, p. 568, TABLE OF CASES. 665 Perry v. Smith, 1 L. J. N. S. 269: 4 Meea. & W. 681; 1 Car. & M. 554, pp. 263, 274, 280, 314, 448, 455. !■■ State, 3 Iowa, 550, pp. 165, 157 Fetch V. Lyon, 9 Q. B. 147, pp. 388, 390, o91. Peter v. Watklns, 3 Bing. (N. C. ) 421 ; 4 Scott, 155 ; 3 Hodges, 25, pp. 273, 274,' 517. Peterson's Case, 3 Paige, 510, p. 153. Peterson, In re, 1 W. W. & H. 418 p. 134. ' ^ Peterson v. Parriott, 4 W.Va. 42, p. 82. V. Powell, 9 Bing. 620, p. 100. Phayre v. Peree, 3 Dowl. 117, p. 463. Phelps V. Brewer, 9 Gush. 390, p. 367. V. Hunt, 4 Conn. 97, pp. 563, 568, V. Overton, 4 Hayw. 292, p. 409. V. Preston. 2 La. An. 488, pp. 380, 405. c. Prew, 3 El. & B. 430; 23 Law J. ^^ B. 140, pp. 294, 296, 300. 0. Worcester, 11 N. H. 51, p. 573. Philby c. Hazle, 9 Com. B. K. S. 647; 7 Jur. N. S. 125; 29 Law J. 0. P. 370, p. 543. Phillips V. Blair, 38 Iowa, 649, p. 453. c. Bridge, 11 Mass. 242, 246, pp. 476, 481,495, 498. i: Dickson, 8 Com. B. N. S. 391; 6 Jur. N. S. 401; 29 Law J. Com. P. 223; 8 "Week. R. 390; 2L.T. N. S. 185; p. 171, V. Dobbins, 56 Ga. 617, p. 385, Phillips, In re, 1 W. W. & H . 418, p . 134. Phillips L\ Jansen, 2 Esp. 624, p. 246. V. Overton, 4 Hayw. (Tenn,) 291, p. 464. r. Pound, 7 Ex. 881; 16 Jur. 645; 21 Law J. Ex. 277, p. 202. ( . Routh, Law R. 7 Cora. P. 289, p. 288. Phipps V. Danbury, 2 Lown. M. & P. 180; 16 Q. B. 514; 20 Law J. Q. B, 273, p. 540. Phoenix Ins, Co, v. Allen, 11 Mich, 501, p. 213. Phoenix Life Ins, Co. In re, 1 H. & M. 433; 11 Week, R, 894; 8 L, T. N. S. 728, pp. 575, 618, 619. Pickets V. Pearsons, 17 Vt. 470, p. 497. Pickett V. Bates, 3 La, An. 627, p. 402. Picfcford V. Ewington, 4 Dowl. Pr. 453, p. 328. Pidgeon r. Williams, 21 Gratt. p. 483. Pierce v. Blake, 2 Salk. 515, pp, 151, 497, V. Strickland, 2 Story, 292, p, 382. V. Thornton, 4 Ind. 235, pp. 513, 515. V. Whate, 5 Barn. & C. 39, p. 500. Pierson v. Holman, 5 Blackf. 482, pp. 354, 360, 370. V Steortz, Morris, 136, p. 319. Pigott V. Codman, 1 Hurl. & N. 837: 26 Law J. Ex. 134, p. 543 Piggott V. Williams, 6 Mod. 95, p. 486. Pike V. Emerson, 5 N. H. 293, pp. 378, 381, 388, 490, 509. Pike, In re, 11 Jur. N. S. 504, p. 100. Pilgrim v. Hirchfelt, 9 L. T. N. S. 288; 11 Week. R. 51, p. 544. Pillsbury v. Dugan, 9 Ohio, 117, pp. 327, 343, 347, 355. Finder v. Morris, 3 Caines, 165, p. 625, Finkerton v. Eastou, Law Rep. 16 Eq. 257, p. 611. Finley v. Bagnall, 3 Doug. 155, p. 557. Fisani v. Attorney-General, Law R. 5 Friv. C. C, 516; S. C, 10 Moak, Eng. R. 78, p. 460. Pitcher v. Monmouth, 2 Marsh, 152, p. 203. V. Rigby, 9 Price, 83, p. 450. )). Sheriff, 2 Marsh. 152, p. 202. Pitt V. Davinson, 37 Barb. 97, p. 415. V. Holden, 4 Burr. 2060, p. 483. V. Pocock, 2 Cromp. & M. 146, p. 203. (', Yalden, 4 Burr. 2060, pp. 135, 443, 471, 474, 475, 483, 486, 498, 501, 519. Pixley V. Butts, 2 Cowen, 421, p. 328. Plaintiffs v. Vanderbilt, 1 Abb. Fr. 193, p. 312. Planters' Bank v. Homberger, 4 Cold. 578, pp. 568, 581. Planters' Bank v. Massey, 2 Heisk. 360, pp. 379, 382, 392. Piatt, Ex parte, 2 Wall, Jr, 453, p. 580. Piatt V. Halen, 23 Wend. 456, pp. 557, 417, Pleasants v. Kontrecht, 5 Heisk. 694, pp. 430, 625. Plitt, Ex parte, 2 Wall. Jr. C. 0. 279, 452, pp. 596, 587. Plomer v. Houghton, 2 Barn, & Aid 604, p, 432, Flumer v. Gregory, 18 Law R. 621, p 524. Flunkett n. Buchanan, 3 Barn. & C 736 P 331 Pocock V. O'Shaunessy, 6 Ad. & E. 807 p, 027. Foillon V. Martin, 1 Sand. Ch. 569, pp. 457, 465. Pollard, In re, 2 Law R. F. C, 106, p. 181. Pollard V. Rowland, 2 Blackf. 22, pp, 478, 507. Poison V. Young, 37 Iowa, 196, p. 458. Poole V. Gist, 4 McCord, 62, 149, pp. 380, 481, 607, 523. Poole, In re, 4 Law R. C. P. 350, p. 155, Poole V. Watkins, 4 Dowl. 11, p. 184. Pope V. Andrews, 9 Car. & P, 664, pp 388, 394, Porter v. Lane, 8 Johns. 357, p. 428. V. Peckham, 44 Cal, 204, pp, 328, 333, 462, 466, 507. (., Ruckman, 38 N. Y. 210, pp, 504, 556. Portis V. Ennis, 27 Tex. 574, p. 411. Post J). Haight, 1 How, 171; 2 Id, .32, pp. 327, 343. Potter V. Black, 8 D. P. C. 872, p. 541. 666 TABLE OF CASES. Potter u. Inhabitants of Ware, 1 Gush 519, p. 228. V. Mayo, 3 Greenl. 34, pp. 607, 611. V. Parsons, 14 Iowa, 286, pp. 350, 397, 401. Potts V. Sparrow, 6 Car. & P. 749, pp 484, 571. Poucher v. Norman, 3 Barn. & Cr. 744, p. 49. Powell V. Kane, 5 Paige, 265, pp. 178, 232, 233. V. Spaulding, 3 Greene, 443, p 355. Power V. Kent, 1 Oowen, 211, 172, pp, 394, 418, 507, 419, 610, 625. Prangley, In re, 4 Ad. & B. 781, p. 94. Prankerd, Ex parte, 3 B. & A. 257, pp 91, 147. Pratt V. Gardner, 2 Cush. 68, p. 170. V. Putnam, 13 Mass. 363, p. 376. V. Vigard. 5 Barn. & Adol. 808 2 Nev. & M. 455, pp. 613, 617. Presider v. Smith. 1 W. W. & H. 51i 2 Jur. 205, p. 539. Preston v. Carr, 1 Younge & J. 175, p. 288. D.Hill, 50 Cal. 43; S. C. 19 Am. R. 647, p. 399. Price V. Bullen, 3 Law J. K. B. 39, pp. 477, 493. V. Clutterbuck, 1 Fost. & F. 379, p. 202. Price, Ex parte, 2 Ves. Sr. 407, pp. 607, 610, 612. Price V. Grand Eapids E. B. 18 Ind. 139, pp. 454, 466. V. Hickok, 39 Vt. 292, p. 350. Prickett, Ex parte, 1 N. E. 266, pp. 539, 545. Priestwick v. Poley, 34 Law J. Com. P. 189; 18 Com. B. N. S. 60S, pp. 393, 395. Prince v. Griffin, 16 Iowa, 552, p. 308. Prior V. Moore, 6 Maule & S. 605, pp. 97, 200. Pritchard v. Eoe, 8 Car. & P. 99, p. 290. Proprietors v. Bishop, 2 Vt. 231, pp. 327, 329. Brothers v. Thomas, 1 Marsh, 539; 6 Taunt. 196, p. 545. Prouse's Case. Croke Car. 389, pp. 197, 198, 203. Prouty V. Eaton, 41 Barb. 409, p. 277. Pruit V. Miller, 3 Ind. 16, p. 256. Pulbrook, In re, Law E. 4 Ch. 627, p 615. Pulver V. Harris, 53 N. Y. 73, p. 607. Purchase v. Bellows, 16 Abb. Pr. 105, p. 627. Purvis V. Landall, 12 Clark & E. 91, pp 475, 483, 484, 492. Putnam v. Van Buren, 7 How. 31, pp, 426, 438. Pye V. Leigh, 2 Wm. Black. 1065, pp, 202 203 Pyke's Case, 6 Best & Smitli, 703, p, 165. Quarles v. Porter, 12 Mo. 76, p. 382. V. Waldron, 20 Ala. 217, p. 225. Quarrier, Ex parte, 4 W. Va. 210, p. 68. Quested v. Lallis, 10 Mees. & W. 18; 1 Dowl. N. S. 888; 11 Law J. N. S. Ex. 345, pp. 609, 625, 629, Quick, Ex parte, 2 Scott, 184; 1 Hodges, 202, p. 544. Quimbv v. Quimby, 6 N. H, 79, p. 625. Quinn v. Lloyd, 36 How. 378, pp. 364, 387, 410. ).. Weatherbee, 41 Cal. 247, p. 478. Quint V. Ophir Co. 4 Nev. .304, pp. 568, 574, 699. Eadcliffe v. Pursman, 2 Br. P. C. C. 514, p. 292. Eader v. Snyder, 3 W. Va. 414, pp. 81, 82. Eamsbotham v. Senior, Law E. 8 Eq. 575, p. 295. Ramsey's Devisees v. Erie E. E. Co., Abb. Pr. 174, p. 221. Eamsey's Devisees v. Trent, 10 B. Mon. 336, p. 587. Eandall v. Brigham, 7 "Wall. 523, pp. 143, 170. V. Ikey, 4 Dowl. 682, p. 571. V. Key, 4 Dowl. 682, p. 506. Eandle v. Puller, 6 Term. Eep. 456, pp. 607, 610, 627. Eaneleigh v. Thornhill, 1 Vern. 202, p. 558. Eankin v. McDowell, 2 Marsh. 621, p. 558. Eansome v. Christian, 56 Ga. 353, p. 213. Eansom, In re. 18 Beav. 220, p. 539. Eanson v. Cothran, 6 Smedes & M. 167, pp. 491, 502. Easquin v. Knickerbocker Stage Co. 21 How. Pr. 293, p. 623. Eastrick v. Beckwith, 2 Dowl. & L. 624; 8 Scott N. E. 716; 7 Man. & G. 905; 3 Jur. 1030; 14 Law J. Com. P. 1, p. 204. Ratcliff V. Baird, 14 Tex. 43, pp. 421, 600. Eathbun v. Ingalls, 7 "Wend. 320, pp. 447, 456, 511, 513, 515. Eawling v. Sewell, 7 Scott, 231, p. 627. Eay V. Adden, 50 N. H. 82; S. C. 9 Am. E. 175, p. 573, (. Birdseye, 5 Deuio, 619; S. C. 4 Hill, 158, p. 498. Eaynor v. Eitson, 6 Best & Smith, 888, p. 289. Eeader v. Bloom, 3 Bing. 9, pp. 82, 99, 100. Eead v. Dupper, 6 Term. Eep. pp. 607, 609, 610, 612. II. French, 28 N. Y, 293, pp. 376, 410, 412, 414, 625, 629. V. Passer, 1 Esp. 216; Peake, 231, p. 297. Redf em v. Lowerby.l Swanst. 84, p. 616. TABLE OF CASES. 667 Eedit V. Brownhead, 2 Bos. & P. 564, p. 219. ' ^ Eeece v. Eigty, i Barn. & Aid. 202, pp. 445, 448, 475, 477, 481, 487, 490, 493, 494, 499, 500. Keed v. Curry, 35 111. 536, p. 370. V. Norris, 2 Mylne & C. 374, p. 466. Keeve v. Kennedy, 43 Cal. 649, p. 360. V. Palmer, 5 Com. B. K. S. 84, pp. 426, 473. Reg. V. Avery, 8 Car. & P. 596, p. 320. V. Buchanan, 8 Q. B. 883, p. 96. V. Burgess, 3 Nev. & P. 366, p. 99. I'. Cumberland, 5 Eail. C. 332; 5 DoTvl. & L. ; 10 Jur. 1025; 17 Law. J. Q. B. 102, p. 334. V. Farley, 2 Car. & K. 313, p. 320. 0. Haywood, 2 Str. 1100, p. 325. V. Jones, 1 Den. C. C. 166; Car. & K. 234, p. 283. V. Litchfield, 10 Q. B. 534; 11 Jur. 888; 16 Law J. Q. B. 333, pp. 334, 564. V. Maybury, 11 L. T. N. S. 566, p. 53. V. Tanner, 2 Ld. Eaym. 1284, p. 325. Keid V. Dickinson, 37 Iowa, 56, p. 413. Eeigal v. Wood, 1 Johns. Ch. 44, pp. 158, 177, 410. Eeinhold v. Alberti, 1 Binn. 469, pp. 374, 378. Eepublic of Mexico v. De Arangoiz, 5 Du. 643, pp. 346, 347. Eespublica v. Oswold, 1 Dall. 328, p. 184. Eespublica v. ITisher, 1 Yeates, 350, p. 198. Eevett V. Harvey, 1 Sim. & St. 502, p. 463. Eevill V. Petitt, 3 Met. (Ky.) 314, pp. 202, 242. Rex V. Back, 9 Price, 349, p. 147. V. Barnards, In re, 5 Ad. & E. 17, p. 25. V. Bennett, Sayers, 169, pp. 135, 486, 488. V. Carlisle, 3 Barn & Aid. 167, p. 217. V. Collingridge, 3 Price, 280, pp. 539 545. V. Creavey, 1 Maule & S. 273, p. 217. V. Crossley, 2 Esp. 576, pp. 499, 600, 562. V Dixon, 3 Burr, 1670, pp. 290, 273, 319, 320. V. Duchess Kingston, 20 How. St. Tr. 612, p. 319. V. Farley, 1 Den. C. C. 197, p. 308. V. Fielding, 2 Curr. 654, p. 135. V. Gilham, 6 T. E. 265, p. 44. I'. Gray's Inn, Doug. 353, p. 23. M. Hales, 2 Strange, 816, p. 325. V Haycock, Strange, 1100, p. 325. V. Hill, 7 Price, 630, p. 405 ti. Lincoln's Inn, 4 Barn. &. C 836, T> 25 V. London, 2 Barn. & Adol. 604, p. 427. Rex V. Middlesex, 2 D. P. C. 147, pp. 427, 431. V. Partridge, 1 Tidd's Pr. 330, p. 545 V. Sank'ey, 6 Nev. & M. 839; 1 Doug. 104, p. 614. V. Sheriffs, 2 Barn. & Aid. 604, p. 433. V. Smith, 1 Phill. Ev. 132, p. 270. V. Southerton, 6 East, 142, pp. 147, 151. V. Tew, Sayers, 50, pp. 135, 486, 487, 488, 494. V. Tilney, 18 Law J. N. S. M. C. 36, p. 320. V. Vaughn, 1 Wilk. 22, pp. 148, 152. V. "White, 1 Eyan & M. 166, p. 20. V. "Williams, 2 Bar. & W. 277, p. 674. V. Withers, 2 Camp. 578, pp. 274, 290, 311, Eeynolds v. Caswell, 4 Taunt. 193, p. 542. 1-. Howell, Law Eep. 8 Q. B. 398, pp. 345, 355, 369. V. McMillan. 63 111. 46, p. 574. V. Sprye, 10 Beav. 51, p. 314. Ehines v. Evans, 66 Pa. 195, pp. 530, 446, 479, 487, 494. Ehodes, Ex parte, 15 Ves. Jr. 72, 539, p. 608. Ehodes v. Selim, 4 Wash. C. C. 718, p. 516. Eice V. Commonwealth, 18 B. Mon. 472, pp. 81, 142, 155, 472, 441. V. Eice, 14 Mon. 417, p. 289. V. Wilkins, 21 Me. 558, p. 382. Richardson v. Brook] vn City, 24 How. Pr. 321, p. 623. V. Rowland, 40 Com. B. 565, p. 589. V. Talbot, 2 Bibb, 282, pp. 420, 424, 426. Richards v. French, 32 Law T. N. S. 327, p. 464. V. Platet, Craig & P. 458, p. 615. i^ Suffield, 2 Ex. 616, p. 98. Eicketson v. Compton, 23 Cal. 637, pp. 343, 367. Eicketts v. Gurney, 1 Chit. 682; 7 Price, 699, p. 200. Eiddle r. Hoffman's Ex, 3 Pa. 224, pp. 478, 526. r. Poorman, 3 Pa. 224, pp. 480, 481. Eidgley v. Steamer Reindeer, 27 Mo. 442, p. 485. Eidley v. Tiplady, 20 Beav. 44, p. 491. Eiggs V. Denniston, 3 Johns. Cas. 198, pp. 285, 676. Eigley v. Dakln, 2 Younge & J. 83, 150, p. 558. Rigley, Ex parte, 11 L. T. K. S. 671, p. 88 Ripley v. Bull, 19 Conn. 56, p. 583. Ripon V. Davis, 2 Nev. &M. 210, p. 311. Risley v. Fellows, 10 111. 531, p. 438. Rob V. Moffatt, 3 Johns. Eep. 257, p. 238. 668 TABLE OF CASKS. Eobb V. Smith, 3 Scam. 46, pp. 81, 124, Eoberts v. Caster, 38 N. Y. 107, p. 627 V. Gresley, 3 Car. & P. 380, p .393. V. Harris, 32 Ga. 542, p. 378. V. Lucas, 11 Ex. 41; 1 Jiir. N" S. 327, pp. 527, 540. B. Mackoul, 2 W. Black. 827. p. 608. V. Mason, 1 Taunt. 254, pp. 200, 204. Robertson v. Marriott, 2 Cromp. & M. 183, p. 517. V. McClellan, 1 How. 90, p. 435. V. Mills, 1 Dowl. N". S. 772 6 Jur. 896, p. 179. V. Shutts, 9Bush, 660, p. 628 Bobbins v. Harvey, 5 Conn. 335, p. 563 Eobins v. Bridge. 3 Mees. & "SV. 119, p 229 Eobins, In re, 11 Jur. N. S. 504, pp. 100 155. Eobinson «. Anderson, 28 Beav. 98, aff'd on appeal, 7 De Gex, M &G. 239, p. 331. V. Danchy, 3 Barb. 20, p. 228 Eobinsou, Bx parte, 2 Dowl. & L. 9, pp. 98, 187. Eobinson v. Pliglit, 8 Loudon Jurist, 888, p. 263. V. Mullett, 4 Price, 353, p, 517. V. Eowland, 4 Dowl. 271, p 562. V. Ward, 1 Ryan & M. 274 p. 456. Eobson V. Baton, 1 T. E. 62, pp. 347, 368, V. Kemp, 4 Esp. 235; 5 Esp. 52. pp. 274, 308, .307, 313. Eochester v. Bank, 5 How. Pr. 259, p. 318. Eochester Bank v. Suydam, 5 How. Pr. 254, pp. 278, 279. Eogers i'. Dare, Wright, 136, p. 516. Rogers, Bx parte, 11 Jur. N. S. 504, p, 87. Rogers v. Greenwood, 14 Minn. 333, p 389. V. Lyons, 64 Barb. 373, p. 297. V. Beeves. 1 T. E. 422, p. 139. Kolfe ti. Eogers, 4 Taunt. 191, pp. 490, 509, 178. Rollaud V. Hart, 6 Law R. Ch. 678, p. 408. Rolles V. Germine, Cro. Eliz. 459, p. 58. Roman v. Mali, 42 Tnd. 513, p. 459. Eootes V. Stone, 2 Leigh, 650, p. 476. Eooney v. E. E. 18 N. Y. 368, pp. 610, 625, 626. Eoscoe «. Hardman, 5 D. P. 0. 157; 2 Har. & W. 118, pp. 173, 175. Eose V. Gerrish, 8 Allen, 147, p. 510. V. Minell, 7 Yerg. 30, pp. 451, 464, 486. V. Minett, 7 Yerg. 930, p. 182. V. Spier, 44 Mo. 20, p. 576. Eoselins v. De La Chaise, 5 La An. 482, pp. 565, 466, 567. Eoss V. Gibbs, Law E. 8 Bq. 522, pp. 285, 291. V. Laughton, 1 Ves. & B. 349, pp. 619, 621, 622, 624. V. Sterling, 4 Dow, 442, pp. 468, 445. M.Wilton, 7 Jur. 1133; 13 Law J. Q. B. 17, p. 546. Eothery v. Mannings, 1 Bam. & Adol. 17, p. 437. Eouflgny v. Peale, 3 Taunt. 484, pp. 477, 481, 493. Eowbottom V. Duffree, 5 Dowl. P. C. 557. p. 526. Eowland, Ex parte, 3 Jur. 1193, p. 94. Eowland v. Stone, 58 Pa. 196, p. 402. Eowle, Ex parte, 2 Chit. 61, p. 86. Eowson t). Barle, M. & M. 538, pp. 437, 521, 520, 571, 603, 491. Eowth V. Stowell, 3 Ves. 656, p. 456. E. B. Co. V. Byers, 8 Casey, 22, p. 487. Eubensteen v. , 10 Ir. C. L. E. 386, p. 52. Eudge, Ex parte, 2 Dowl. N. S. 682, p. 98. Euuyou V. Nichols, 11 Johns. 547, pp. 486, 556, 571. Eush V. Cavanaugh, 2 Pa. 189, pp. 247, 588. V. Larue, 4 Litt. 411, pp. 163, 164. Eussell's Case, Say. 125, p. 619. Eussell V. County, 29 Iowa, 256, p. 363. V. Jackson, 9 Hare, 378, pp. 301, 302, 303, 313. V. Lane, 1 Barb. 516, p. 373. Eussell V. Palmer, 2 Wils. 325, pp. 474, 476, 481, 486, 487, 498, 499, 500, 519, 528. Eussell V. Stewart, 3 Burr. 1787, pp. 481, 498. Russell, Trial of Lord, 9 State Trials, 578, p. 18. Russell V. Reece, 2 Car. &K. 669, p. 137. Rust t'. Prothingham, Breese, 260, p. 367. V. Larue, 4 Litt. 411, pp. 549, 558, 580, 587. Byalls V. Leader, Law E. 1 Ex. 246, p. 217. Ryan v. Doyle, 31 Iowa, 53, pp. 355, 363. Ryckman v. Coleman, 13 Abb. Pr. 398, pp. 218, 220. Ryland v. Noakes, 1 Taunt. 342, pp. 426, 427, 432, 435, 438. S. Sabin v. De Burgh, 2 Camp. 196, p. 97. Safeery, In re, 11 Week. E. 779, p. 94. Saidler v. Elliott, 3 Barn. & C. 738, p. 474. Salisbury v. Tongas, 10 Met. 442, pp. 469, 497, 509. Salt V. Carr, Car. & M. 123, p. 318. Sample v. Frost, 10 Iowa, 266, p. 279. Sampson v. Obleyer, 22 Cal. 200, pp. 386, 375. Samuel c. Isaacs, 2 Lond. Jur. 858, p. 138. TABLE OP CASES. 669 Sanchez v. Roach, 5 Cal. 248, p. 438. Sanderson v. Caldwell, 45 N. Y. 398- S C. 6 American Rep. 105, p. 245. ' Sands v. Trevilian, Cro. Car. 107, pp 659, 563. Sanford a. Bennett, 24 N. Y. 20, p. 217. V. Remington, 2 Ves. 189, pp! 266, 299, 309, 315. V. Ruckman, 24 How. Pr. 521, p. 556. Sargeant v. Gannon, 7 Com. B. 742; 6 Dowl. & L. 691; 18 Law J. C. P. 220, p. 542. Sargent v. Hampden, 38 Me. 581, pp, 254, 268. V. Pettibone, 1 Aiken, 355, pp. 230, 232, 234. Satterlee v. Bliss, 36 Cal. 489, pp. 277, 279, 281. V. Frazer, 2 Sand. 141, pp. 513, 558, 580, 588, 589. V. Mathewson, 2 Peters, 380, p. 69. Saunderson v. Glass, 2 Atk. 298, p. 459. Saunders v. McCarthy, 8 Allen 42, p. 390. Savory v. Chapman, 8 Dowl. 656, pp. 380, 383, 409, 423. V. King, 5 H. L. Cas. 627; 2 Jur. ISr. S. 503, pp. 463, 465. V. Savory, 8 Iowa, 217, p. 343. V. Sypher, 6 Wall. 157, p. 382. Savings Bank v. Benton, 2 Met. (Ky.) 240, pp. 565, 566. Savings Institution v. Chinn's Admr. 7 Bush, 539, pp. 384, 402. Sawyer v. Blrchmore, 3 Mylne & K. 572, p. 318. Saxon V. Blake, 29 Beav. 438, p. 137. V. Castle, 6 Ad. & E. 652, p. 240. Saxton V. Stowell, 11 Paige, 526, pp. 135, 155, 156, 184. i>. Wyokoff, 6 Paige, 182, p. 173. Sav V. Seal's Case, 10 Mod. 40, p. 306. Sayers, Ex parte, 10 L. R. C. P. 638, p. 96. Scarfe v. Morgan, 4 Mees. & "W. 285, pp. 612, 621. Schenk, Ex parte, 65 N. C. 353, p. 148. Schoole ti. Noble, 1 H. Black. 23, pp. 608, 628. Schirling v. Scites, 41 Miss. 644, p. 367, Schroudenbeck v. Phoenix Ins. Co., 15 Wis. 632, pp. 334, 343, 354. Schwalbanker, Ex parte, 1 Dowl. O. S. 182, pp. 176, 137. Scobey v. Ross, 5 Ind. 445, pp. 556, 590. Scott's Admrs. v. Wickliffe, 1 B. Mon. 353 p 445 Scott ». Eaton, 26 Ark. 17, p. 358. V. Elmendorf, 12 Johns. 315, pp. 374, 558, 563. V. Harmon, 109 Mass. 237, p. 165. V. Hoxie, 13 Vt. 50, p. 422. V. Newington, 1 Macl. & R. 252, p. 621. V. Seller, 5 Watts, 235, pp. 410, 415. Scott V. Stanstield, 3 L. R. Ex 220 p 170. V. Van Alstyne, 9 Johns. 216, pp. 199, 205. Scranton v. Stewart, 52 Ind. 68, p. 271 Seaman v. Dee, 2 Lev. 39; 1 Vent. 198, p. 210. Seaman, Ex parte, 3 Hurl. & C. 148; 10 Jur. N. 8. 592 ; 33 Law J. Ex. 204; 12 Week. R. 748; 10 L. T. N. S. 345, p. 612. ' '^ Secombe, Ex parte, 19 How. U. S. 9, pp. 66, 141, 181. Secor V. Bell, 18 Johns. 52, p. 199. Sedgworth v. Spicer, 4 East. 569, p. 139. Sedgwick v. Stanton, 14 N. Y. 289, pp. 164, 588. Sedley v. Sutherland, 3 Esp. 202, pp. 239, 241, 501. Seely v. Crane, 3 Green, 35, pp. 548, 549, 563. V. North, 16 Conn. 92, p. 565. Seewood, Ex parte, 8 Jur. 404, p. 98. Selves V. Hamilton, 6 Iowa, 149, p. 453. Semple v. Atkinson, 64 Mo. 504, p. 423. Sendee v. Parker, Rep. Temp. Pinch, 75, p. 588. Serace jj.Whittington, 2 Barn. & C. 11, pp. 236, 421, 558. Sergeant's Case, 8 Scott, 430, pp. 47, 48. Sevier v. HoUiday, 2 Ark. 512, p. 510. Sewell, Ex parte, 32 Beav. 475, p. 98. Sewell V. Allen, 17 L. J. Ex. 246, p. 467. Sexton V. Pike, 13 Ark. 193, p. 610. Seymour v. Ellison, 2 Cowen, 13, pp. 81, 73. Shapely v. Bellows, 4 N. H. 355, p. 594. Sharp V. Carter, 3 P. Wras. 375, p. 163. Sharp, Ex parte, 5 Dowl. & S. 717, p. 174. Sharp V. Hawker, 3 Scott, 396, pp. 160, 133. V. Mayor, 31 Barb. 578, p. 478. Sharpe v. Poy, 17 Week. R. 65, p. 408. Sharpe, In re, 1 Dowl. 432, pp. 614, 617, Shaughenessy v. Foggs, 15 La. An. 330. p. 277. Shaw V. Arden, 9 Bing. 287; 2 Moore & S. 341, pp. 505, 557, 571. P. Kidder, 2 How. Pr. 244, pp. 379. 396 397 V. Neale, 6 H. L. Cas. 581 ; 4 Jur. N. S. 695; 27 Law J. Ch. 444, pp. 171, 607. Shaves v. Norris, Pen. (N. J.) 63, p. 549. Sheldon v. Ricedorph, 25 Minn. 518, p. 408. Shellars v. Harris, 5 Car. & P. 592, p. 254. Shelt'on v. Tifflen, 6 How. 163, pp. 355, 358, 360, 363. V. Pendleton, 18 Conn. 421, p. 460. Shepherd u. Mackoul, 3 Cowp. 326, p. 563. Sherman v. State, 4 Kan. 570, p. 235. Sherrard v. Nevine, 2 Ind. 241, p. 356. Sherry, In re, 3 Law R. Q. B. 164, p. 85. Sherwood, Ex parte, 7 Moore, 493, p. 97. 670 TABLE OF CASES. Sherwood, In re, 3 Beav. 338, p. 562. Sherwood v. Saratoga E. R. Co. 13 Barb. 650, pp. 221, 454, 455, 625. Shillcock V. Passman, 7 Car. & P. 289, p. 484. Shiller v. Davidson, 4 La. An. 171, p. 501. Shipden, Ex parte, 6 Dowl. & R. 338, pp. 134, 174. Shire v. King, Yel. 82, p. 220. Shore v. Bedford, 5 Man. & G-. 271, pp. 275, 290, 455, 263, 448. Shores v. Cresswell, 13 Met. 413, p. 381. Shorman v. Allen, 1 Man. & Gr. 96, p. 335. Short V. King, 2 Strange, 681, p. 312, V. McCartliy, 3 Barn. & Aid. 629, pp. 498, 530, V. Pratt, 1 Bing. 102, pp. 148, 157. V. Smith, 1 Man. & G. 211; 8 D. P. C. 584; 1 Scott N, R. 155, pp. 183, 184. Shorter, In re, Dist. Court Ala. p. 68. Shumaway «. Stillman, 6 Wend. 453, pp. 355, 356, 358. Sidney, Algernon, Trial of, 9 St. Tr. 817, p. 18. Sigourney J), Waddle, 9 Page, 381, p. 220. Silkman v. Boiger, 4 E. D, Smith, 236, p. 343, Sill, In re, 2 Jur. N. S. 1232, p. 100. Sill V. Thomas, 8 Car. & P. 762, p. 571. Silves V. Ely, 3 Watts & S, 120, pp. 410, 412. Simes v. Gibbs, 1 W, W. & H. 401, p. 134. Simmons v. Almy, 103 Mass. 33, pp. 619, 625, V. Bradford, 15 Mass. 82, pp. 495, 498. V. Rose, 31 Beav, 1, pp, 497, 507 527 V. State,' 12 Mo, 268, p, 75. Simms v. Brutton, 5 Ex, 802 ; 20 Law J. Ex. 41, p. 381, Sims V. Brown, 6 Thomp, & C. 5, p, 515. Simpson v. Brown, 33 Beav, 483, p, 264. V. Lamb, 7 El, & B, 84, pp. 458, 463, 465, 579, 626. V. Lombas, 14 La, An, 103, p. 385, Simpson, Ex parte, 15 Ves, Jr, 476, p. 178. Simpson, In re, 1 Com. B. N. S. 554, p, 167. Skapholm v. Hart, 15 Vin. Abr. 171, p. 164. Skillen v. Wallace, 36 Ind. 319, p. 503, Skinner v. Sweet, 3 Madd. 244, pp. 607, 609, 610. Skirrow v. Tagg, 5 Maule & S. 281, pp. 197, 198, Slaughter-House Cases, 16 W^all. 36, p, 78, Slocum V. Newby, 1 Murph. 423, p, 228, Sloman v. Heme, 2 Esp, 695, p, 263. V. Louden, 396, p, 269, Sloo V. Law, 4 Blatchf, 0, C. 268, pp, 428, 430, Smallwood v. Norton, 20 Me, 80, p. 527. Smedes v. Elmendorf, 3 Johns. 185, pp. 476, 487, 493, 497. Smith V. Andrews, 1 Roll. Abr. 64, p. 40. V. Bossard. 2 McCord, 406, pp. 236, 375, 405. V. Bowditch, 7 Pick. 138, pp. 229, 230, 367. V. Brocklesburg, 1 Anstr. 61, p. 628. V. Brotherline, 62 Pa. 461, p, 442. V. Chichester, 2Dru. & War. 293, p. 613, V. Daniels, Law Rep. 18 Eq. 647, pp. 278, 319. V. Davis, 45 N. H. 566, pp. 556, 573, 574. V. Demies, 7 Dowl, & L. 78; 5 Ex. 32; 13 Jur, 518; 19 Law J. Ex. 60, p, 539. V. Dougherty, 37 Vt. 530, p. 568. V. Fell, 1 Curt. 667, p. 286. V. Ganisford, 1 Rose, 148, pp. 236, 502. u. Gillett, 3 Dowl. 364, pp. 151, 154. V. Hill, 8 Eng. Ark. 173, p. 524. V. Holding, 1 McCord, 379, pp. 148, 150, 155. V. Lipscomb, 13 Tex. 537, pp. 419, 420. V. Lyford, 11 Shep. 147, pp. 562, 565, V. Matham, 4 Dowl. & R. 738, p. 147, V. Millikiu, 2 Minn. 319, pp. 377, 388, V. Pocock, 23 Eng. Law & Eq. 420. pp. 511, 517, 520. V. Rolt, 2 D. P. C. 21, pp, 505; 571. V. State, 1 Yerg. 228, pp, 147, 155, 158, 159, ti, Tennessee, 1 Yerg. 228, pp. 152. 153. V. Thompson's Heirs, 7 B. Mon. 308, pp. 451, 459, 465. V. Tower, 2 Dowl. 673, p. 151. J), Wattleworth, 4 Barn. & C, 364; 6 Dowl. & R. 510; 1 Car. & P. 615, p. 545. V. Wilson, 2 Dowl. 665, pp. 82, 99. «. Winter, 18 Week. R, 447, p. 609. Smith's Case, 1 Brod. & B, 522, p, 141. Smith, Bx parte, 12 Fla. 278, pp. 86, 98, 141, 152, 153, 166, 167, 178, 548. Smithers, Ex parte, 1 Arms, 423. p. 95. Smithwick v. Evans, 124 Ga. 461, p, 277. Smock V. Dale, 5 Rand. 639, pp. 398, 403, 411. Smyth V. Harris, 31 111. 62, pp. 416, 425, 507 525 Snelling, Ex parte, 44 Cal. 553, p. 123. Solomon, Ex parte, 1 Glyn & J. 25, p. 621. Somers v. Balabrega, 1 Dall. 164, pp, 375, 423. Sommers v. Torrey, 5 Paige, 54, p. 178. Souter V. Watts, 2 Dowl. 263, p. 368. TABl.E OF CASES. 671 South Staffordshire E. R. Co. v. Smith 1 Lown. M. & P. 515; 19 Law J. Ex. 356, p. 104. Sowell V. Champion, 6 Ad. & B. 407, pp. 240, 242. Spaight V. Oowne, 1 Hem. & M. 359, p. 467. Spangel v. Dellinger, 42 Cal. 148, p. 366. Spark V. Spicer, 1 Ld. Raym. 322, 738, pp. 607, 614. Sparks v. Middleton, 1 Keb. 505, pp. 253, 257. Spears v. Hartley, 3 Esp. 81, p. 614. V. Ledgerber, 65 Me. 465, p. 397. Spenceley i\ Schulenberg, 7 East, 357, pp. 263, 282, 299, 309, 311. Spencer. In re, 18 W. R. Oh. 240, pp. 476, 483, 493. Spiller V. Davidson, 4 La. An. 171, p. 483. Spinks V. Davis, 32 Mis.s. 152, pp. 224, 455. Sprague v. Baker, 17 Mass. 586, pp. 493, 518. Springer v. Whipple, 17 Me. 351, p. 381. Spurrier v. Alien, 2 Car. & K. 210, p. 570. Spyer v. Bernard, 8 L. T. iST. S. 396, p. 540. Staats, Ex parte, 4 Cowen, 76, p. 176. Staokhouse v. O'Hara, 14 Pa. 88, pp. 899, 401, 423. Stafford v. Richardson, 15 Wend. 305, p. 446. St. Albans v. Bush, 4 Vt. 58, pp. 343, 562. Staley v. Dodge, 50 111. 43. p. 457. Standage v. Creighton, 5 Car. & P. 406, pp. 393, 394. Standard v. Ullithorne, 10 Bing. 491, pp. 492, 497, 508, 519, 520. Standefer v. Dowlin, Hemp. 209, p. 343. Stanley v. Jones, 7 Bing. 349, pp. 164, 165, 166. Stanton v. Haskin, 1 McArth. 561. pp. 164, 165, 580. Staples V. Staples, 4 Greenl. 535, p. 514. Starbuck r. Murray, 5 Wend. 148, p. 356. Starke v. Kenan, 11 Ala. 819, p. 378. Starr v. Vanderhevden, 9 Johns. 253, pp. 141, 173, 441, 451. Starving );. Cousins, 1 Gale, 159, p. 563. St. Aubyn v. Smart, 5 Law R. Eq. 183, p. 524. State V. Anderson, 40 Iowa, 207, p. 181. V. Bradley, 6 La. An. 556, p. 324. V. Carothers, 1 Greene, 464, p. 343. V. Chapman, 11 Ohio, 430, pp. 141, 149. V. Chitty, 1 Bail. 379, p. 162. V. Collins, 70 N. C, 241, p. 215. V. Cook, 23 La. An. 347, p. 226. V Ferris, 16 La. An. 424, p. 324. V Fields, 1 Mart. & Y. 70, p. 152. V. Foreman, 3 Mo. 602, p. 156. V. Galaxy, 5 Ohio, 14, p. 79. V. Garesche, 36 Mo. 256, pp. 68, 75. 81. State V. Haddon, 8 D. P. C. 995, p, 137. V. Hamilton, 55 Mo. 520, p. 210. !). Hawkins, 28 Mo. 366, p. 373. V. Hazleton, 15 La. An. 72, p. 271. V. Houston, 3 Har. (Del.) 15, pp. 343, 370. V. King, 21 La. An. 201, p. 79. V. Kirk, 12 Fla. 278, p. 146. V. Lassiter, 70 N. C. 462, p. 212. V. McKinney, 42 Iowa, 205, p. 275. V. Robinson, 26 Tex. 367, p. 159. V. Romero, 5 La. An. 24, p. 324. V. Start, 7 Iowa, 499, p. 155. V. Smart, 1 Iowa, 499, p. 142. V. Squires, 1 Tyler, 147, pp. 296, 319. V. Tilghman, 6 Iowa, 496, p. 344. V. Wafles, 12 La. An. 243, p. 79. V. Waltham, 48 Mo. 55, p. 210. V. Watkins, 3 Mo. 388, 159, p. 155. V. Williams, 6 N. C. 505, p. 212. Steele, In re, 10 Jur. N. S. 4, 125, p^ 96. Stephens v. Babcock, 3 Barn. & Adol. 357, p. 418. V. Gagwell, 15 Ves. 139, p. 164. V. Parrar, 4 Bush, 13, p. 628. V. Hill, 10 Mees. & W. 28, pp. 148, 152, 157. V. Monges, 1 Harris, 127, pp. 549, 556, 558. V. Walker, 55 111. 151, pp. 474, 480. t). White, 2 Wash. (Va.) 203, pp. 482, 485, 503, 521, 522. V. Roe, 37 6a. 289, p. 268. Stevens v. Adams, 23 Wend. 57, pp. 549, 559. «.. Fuller, 55 N. H. 443, p. 343. V. Walker, 55 111. 151, pp. 483, 487. u. Weston, 5 Dowl. & R. .399; 3 Barn. & C. 530, p. 628. Slevenson v. Berwick, 1 Q. B. 154, p. 562. V. Blacklock, 1 Maule & S. 535, pp.612, 613,615,616, 618, 622. V. Power, 9 Price, 384; Jur. 198, pp. 183, 184, 185. V. Stevenson, 3 Edw. 340, pp. 428, 429. Stewart v. Common Pleas, 10 Wend. 597, p. 435. Stewart. Ex parte, 7 L. R. Ex. 202, p. 96. Stewart v. Flowers, 44 Miss. 513, p. 615. Stewart, In re, 2 L. R. P. C. 88, p. 150. Stewart v. Potts, 49 Miss. 749, p. 79. Still V. Thomas, 8 Car. & P. 428, p. 559. Stimpson v. Sprague, 6 Me. 470, p. 522. Stirling, Ex parte, 16 Ves. 259, pp. 612, 613, 615, 618. Stockton V. Ford, 11 How. 247, pp. 451, 462, 468. Stockley v. Hornidge, 8 Car. & P. l(i, p. 239. Stokely v. Robinson, 31 Pa. 318, pp. 397, 399, 403, 404, 405. Stokes, Ex parte, 1 Chit. 536, p. 93. 672 TABLE OP CASES. Stokes V. Geddes, 46 Oal. 17, p. 360. V. Trnmper, 2 Kay & J. 232, pp 491, 541, 566. V. White, 1 Cromp. M. & E. 223. p. 240. Stones V. Bacon, 4 Dowl. & L. 393, p, 52. Stone's Case, 1 Vent. 16, 29, pp. 197, 198 Stone V. Stone, 4 Taunt. 601, p. 13G. Story V. Vanderheyden, 9 Johns. 253 pp. 465, 468. Stow V. Hamlin, 1 How. Pr. 425, pp, 568, 576. Stracy v. Blake, 1 Mees. & W. 168, p, 398. Stratford, Ex parte, 12 L. J. Q. B. 231, p. 154. Stratford v. Hogan, 2 Ball & B, 164, p 267. Stratton v. Hussey, 62 Me. 286, pp. 610. 628. Strauss v. Francis, Law E. 1 Q. B. 379 S. C. 7 B. & S. 365, pp. 393, 395, 397, Stretton, In re, 14 Mees. & W. 80B, pp 570, 575, 589. Strippleman v. Clark, 11 Tex. 298, p 75. Strodes v. Seyton, 2 Ad. & E. 171, p 254. Strong V. Dickinson, 5 D. P. C. 86; 1 Mees. & W. 488; 2 Gale & D. 83, p. 201. V. Howard, Str. 621, pp. 619, 620. Strothers, In re, 3 Kay & J. 518; 3 Jur. N. S. 736; 26 Law J. Ch. 695, p. 539. Stuhts V. Beene, 37 Ala. 627, pp. 483, 526. Study V. Sanders, 2 Dowl. & E. 347, 262, 282, 298, 310, 319. Sturdy, In re, 2 Jur. N. S. 452, p. 167. Stuyvesant v. Peckham, 3 Edw. Ch. 579, p. 268. Sulliard's Case, EoUs Eep. 459, p. 147. Sullivan v. Pearson, 19 L. T. N. S. 430; L. E. 4 Q. B. 153; 9 Best & Smith, 960, p. 625. Surgett V. Byers, Hemp. 716, p. 465. Sutherland, In re, 1 Dowl. 573, p. 116. Suydam v. Vance, 2 McLean, 99, pp. 486, 494, 497, 529. Swain v. Senate, 2 New Eep. 99, pp. 623, 625. Swannell v. Ellis, 8 Moore, 340; 1 Bing. 347, pp. 484, 490, 493, 494, 498. Sweet V. Bartlett, 4 Sand. 661, pp. 606, 611. Sweet, In re, 20 Pick. 1, p. 198. Sweeney v. King, 36 Bug. L. & Eq. 100, p. 457. Swiuhurne, Ex parte, 3 Dea, 396, p. 614. Swift V. Perry, 13 Ga. 138, p. 254. Swinfen v. Chelmsford, 5 Hurl. & N. 890, pp. 57, 393, 395, 491, 536. V. Swinfen, 25 Law J. Com. P. 306, pp. 52, 393, 395, 399, 491. Syle, Ex parte, 1 Cal. 331, p. 628. Symes v. Nipper, 12 Ad. & E. 277ji, pp. 505, 587, 571. Symmes v. Major, 21 Ind. 433, p. 369. Symonds v. Mills, 8 Taunt. 526, p. 608. Symons v. Blake, 2 Cromp. M. & E. 416; 1 Gale, 182, pp. 613, 616. T. Taate v. Downes, 3 Moore P. C. C. 41, pp. 143, 168. Tabram v. Horn, 1 Moody & E. 228, pp. 327, 330, 608, 610. Talbot V. McGee, 4 Mon. 377, pp. 403, 609. Tallcott V. Bronson, 4 Paige, 501, pp. 609, 625. Tally V. Eeynolds, 1 Ark. 99, pp. 327, 341. Tankersly v. Anderson, 4 Desaus. 45, p. 380. Tanner v. Lea, 4 M. & G. 617; 5 Scott N. E. 237, p. 540. Tapley v. Coffin, 12 Gray, 420, pp. 580, 584. Tarbell v. Dickinson, 3 Gush. 346, p. 234 Tatham v. Lewis. 65 Pa. 65, p. 527. Taunton v. Goforth, 6 Dowl. & E. 384, p. 614, Taylor, Ex parte, 4 Barn. & C. 341, pp. 86-89, 98, 136. Taylor v. Armstead, 3 Call. (Va.) 200, pp. 512, 513. V. Bank, 14 Ala. 633, p. 455. V. Bates, 5 Cowen, 376, pp. 177, 445, 447, 512, 513, V. Blacklow, 3 Bing. N. C. 235. 421, pp. 254, 274, 313, 448; 466, 516, 617, 519, 44. V. Clarke, 13 Ir. C. L. 571, p. 50. V. Foster, 2 Car. & P. 195, pp. 262, 291. V. Fuller, Ca. Pr. C. P. 64, p. 200. V. Gorman, 4 I. R. Eq. 550, pp. 476, 492, 520. ■II. Harris, 4 Barn. & Aid. 93, p. 312. V. Hodgson, 3 Dowl. & L. 115; 10 Jur. 355; 14 Law J. Q. B. 310. V. Popham, 15 Ves. Jr. 72, pp. 608, 628. Tebbs, Ex parte, 9 D. P. C. 161, p. 95. Templar v. McLachlan, 2 Xew. Eep. 136, pp. 604, 506, 571. Tenney, Ex parte, 2 Duv. 351, p. 81. Terhune v. Colton, 10 N. J. Eq. 21, v. 374. Terrall v. Bank, 12 Ala. 502, p. 407. Thallhimer v. Brinckerhoff, 3 Cowen, 623, pp. 163-165, 587. Tharratt v. Trevor, 7 Ex. 161; 21 Law J. Ex. 59, p. 176. Thatcher v. D'Aguilar, 11 Ex. 436, pp. 140, 345. TABLE OF CASES. 673 Thayer w. Sherman, 12 Mass, 441, p. 514. Thomas, In re, 11 Week. E. 341, pp. 87, 96. Thomas v. Harris, 27 Law J. Ex. N. S 353, pp. 52, 390. V. Hews, 2 Cromp. & M. 327, p. 405. V. Hewes, 2 Cromp. & M. 519, p. 395. V. Kinsey, 8 Ga. 421, p. 389. V. Roberts, 5 Dana, 189, p. 152. V. Steele, 22 Wis. 207, pp. 338, 343, 354. Thompson, In re, 20 Beav. 545, p. 526. Thompson, Ex parte, 3 L, T. N. S. 317, p. 611. Ex parte, 3 Hawlcs, 355, pp. 91, 79, 94, 162. Thompson v. Blackburn, 1 Nev. & M. 277, p. 337. V. Falk, 1 Drew. 21, p. 292. V. Gordon, 4 Dowl. & L. 49, pp. 160, 134, 136. V. Kilborne, 28 Vt. 7B0, pp. 276, 285. V. Moore, 1 Dowl. N. S.283; 5 Jur. 1009, p. 201. V. Wilson, 29 Ga. 539, p. 284. V. Whitman, 18 Wall. 467, pp. 350, 356, 357. Thorn p. Lawson, 6 Tex. 240, p. 81. Thornton, In re, 2 D. P. C. 156, p. 173. Thorp V. Fowler, 5 Co wen, 446, p. 436. Thursby v. Warren, Cro. Car. 160, pp. 58, 558. Thurston v. Percival, 1 Pick. 415, pp. 164, 165, 549, 580, 587, 590. Thwaites v. Mackerson, 3 Car. & P. 341; M. & M. 199, pp. 444, 480, 483, 493, 497, 509, 545, 589. V. Roe, 3 Dowl. & E. 226, p. 174. Tiffany v. Lord, 40 How. Pr. 481, pp. 379, 404. Tilleard, In re, 23 Law J. Ch. 765; 11 Week. E. 764; 8 L. T. N. S. 587, p. 544 Tilley, Ex parte, 2 Eose, 83, p. 621. Tillinghast, Ex parte, 4 Pet. 108, p. 149. Tillman v. Reynolds, 48 Ala. 365, p. 628. Tillotson V. McCrillis, 11 Vt. 477, p. 514. Tippaok V. Bryant, 63 Mo. 580, p. 354. Tipping V. Johnson, 2 Bos. & P. 357, pp. 424, 427, 431, 436. Tisdale v. Beddington, Noy, 168, p. 164. Titterton v. Sheppard, 3 Dowl. & L. 775, p. 138. Tompkins, In re,W. W. & D. 569, p. 95. Tomlinson v. Brittlebank, 1 Har. & W. 573, p. 250. Toms V. Powell, 6 Bsp. 40, p. 623. Torrey «. Payne, 1 Barn. & Adol. 660, p. 626. A. & C— 43. Tosland, Ex parte, 31 Beav, 488, p 546. Toulmin v. Steere, 3 Mer. 228, p. 408. Towle V. Hatch, 43 N. H. 270, p. 234, Townley, Ex parte, 3 D. P. C. 39, pp. 183, 184. Townly, Ex parte, 3 Dowl. 40, pp. 153, 155. Townly v. Jones, 8 Com. B. N". S. 289, p. 489. Trasmull v. Shropshire, 22 Tex. 327, p. 173. Treadway v. Company, 40 Iowa. 526, p. 389. Treasurer v. McDowell, 1 Hill, (S. C. ) 184, p. 405. Treat v. Jones, 28 Conn. 334, pp. 557, 572. Tremper v .Wright, 2 Caiues, 102, p. 417. Trenchard, Ex parte, 9 Law E. Q. B. 406, p. 89. Treson v. Pearman, 3 Barn. & C. 799, p. 492. Trist V. Child, 21 Wall. 441, p. 557. Trotter !). Latson, 7 How. Pr. 261, p. 293. Trotter v. Smith, 59 111. 240, p. 457. Trowbridge v. Weir, 6 La. An. 70S, p. 61. Trumbull v. Nicholson, 27 III. 189, pp. 402, 405, 411, 486, 509. Truby v. Seybert, 12 Pa. 101, p. 389. Truett V. Wainright, 4 Gilman, 420, p. 355. Trustees v. Cowen, 5 Paige, 570, p. 234. Trust V. Eepoor, 15 How. Pr. 570, p. 430. Tucker, In re, 9 D. P. C. 661, p. 94. Tucker v. Henniker, 41 N. H. 317, p. 211. V. Neck, 4 Bing. (N. C.) 113; 6 D. P. C. 239; 3 Hodges, 242, p. 547. Turner, In re, 8 Law E. C. P. 103, p. 160. Turner v. Caruthers, 17 Cal. 431, p, 343, 347, 349, 370. t). Commonwealth, 2 Met. 619, p. 161. V. Deane, 3 Ex, 839, p. 615. V. In re, 5 De Gex, Macn. & G. 540; 24Law J. Ch. 71, p. 546. V. Gibson, 2 Ves. 558, p. 614. V. Myers, 23 Iowa, 391, pp. 565, 566. u. Phillips, Peake's Ca. 122, pp. 50, 51, 536. V. St. John, 3 Cold. 376, p. 152. V. Eailton, 2 Esp. 474, p. 316. D. Eeynall, 14 Com. B. N. S. 528, p. 560. V. Eoylton, 2 Esp. 474, pp. 282, 299. 11. Tennant, 10 Jur. 429, pp. 574, 589. Turney v. Bailey, 34 Beav. 105, p. 316. Turquand v. Knight, 2 Mees. & W. 101, pp. 257, 273, 288, 291. Turton v. Barber, Law E. 17 Eq. 329, pp. 254, 269, 275, Turwin v. Gibson, 3 Atk. 719, pp. 605, 606, 607, 609, 610. 674 TABLE OF CASES. Twort V. Dayrell, 13 Ves. 295, pp. 428, 433. Twynam, Ex parte, 8 D. P. C. 293, p. 95. Tyaok's Case, Skin, 1 ; 2 Mod. 340, p. 619. Tyson v. Ironmonger, 1 "Wils. 30, p. 174. Tyrrell v. Bank of London, 10 H. L. Cas. 26; 8 Jur. N. S. 849; 31 Law J. Ch. 369; 10 Week. E. 359; 9 L. T. K S. 1, pp. 456, 465. TJ. Union Bank v, Geary, 5 Peters, 98, pp. 412, 413. V. Georgetown, 5 Peters. pp. 99, 378. V. Govan, 18 Miss.; 10 Smedes & M. 333, p, 414. United States v. Callender, Whart. St, Tr. 688, p. 213. United States v. Curry, 6 How. 100, p, 437. United States v. Porter, 2 Crancli C. 60, p. 140. Unwiu V. Eoblnson, Barnes, 53, p. 205, Unthank, Ex parte, 2 Moore & P. 453, p. 88. Uppendale v. Lightfoot, Sayers, 117, p, 339 Uxbridge, Ex parte, 6 Ves. 425, p. 620, Uzee V. Biron, 6 La. An. 565, p. 574. Vail V. Conant, 15 Vt. 314, p. 383. V. Jackson, 13 Vt. 314, p. 397. Vaillant v. Dodermead, 2 Atk.524, pp. 253, 254, 262, 287, 312, 316. Vale V. Oppert, Law Eep. 10 Ch. Ap. 340, p. 605. Valentine v. Stewart, 15 Cal. 387, pp. 221, 442, 455, 465, 587. Valpy, In re. Law Eep. 7 Ch. 289, p. 520. Van Alta v. McKinney's Exrs. 1 Har- ris, 235, pp. 548, 549, 556, 558. Vane, Trial of, St. Tr. 153, p. 164. Vann, In re, 15 Com. B. 341; 3 Com Law, 126, p. 639. Van Eensselaer v. Sheriff, 1 Cowen 443, pp. 221, 224. Vansandeau v. Browne, 9 Bing. 402, 2 Moore & S. 543, pp. 437, 491, 521, 525, 526, 560, 570, p. 330. V. Burt, 1 Dowl. & E. 168, p. 628. Van Wart v. Wolley, Eyan & M. 4, p, 389. Varnum v. Bellamy, 4 McLean, 87, p 380. V. Martin, 15 Pick. 450, pp, 476, 483, 490, 494, 497. Vaughn v. Daviea, 2 H. Bl. 440, pp. f 609, 627. Vaughn, Ex parte, W. W, & D. 46, p. 87. Velas V. Downer, 21 Vt. 419, pp. 549, 568, 573. Venable's Case, Cro. Car. 11, p. 198. Vent V. Parcey, 4 Euss. 193, pp. 292, 269. Vetchell v. Clark, 5 Mass. 309, p. 607. Vincent v. Bodardo, 2 Kebb, 199, p. 329. V. Groom, 1 Chit. 182, pp. 231, 443, 497. V. Slaymaker, 12 East, 372, p. 542. Viney v. Chaplin, 2 De Gex & J. 468; 4 Jur. N". S. 619; 27 L. J. Ch. 434, p. 381. Vise V. Hamilton Co. 19 111. 18, 78, pp. 75, 324. Volant V. Soyer, 13 Com. B. 231; 22 Law J. Com. P. 83, pp. 299, 311. Von Wallhoffen v. Newcomber, 10 Hun. 236, p. 479. Voorhees v. Dorr, 51 Barb. 580, p. 164. Voorhies v. Harrison, 22 La. An. 85, p. 420. V. McCartney, 51 N. Y. 387, p. 233. Vosper, Ex parte, 4 Best & Smith, 901, p. 88. Voss V. Bachop, 5 Kans. 67, pp. 445, 446, 515. ■w. Wader v. Powell, 31 Ga. p. 405. Wadeson v. Smith, 1 Stark. 324, p. 541, Wads worth v. Hamshaw, 2 Brod. & B 5, pp. 253, 254, 290. Wads worth v. Marshall, 2 Gromp. & J. 665, pp. 437, 521, 491, 515, 526. Wadworth v. Allen, 1 Chit. 186, p. 152, Wagstaff V. Wilson, 4 Barn. & Adol 339, pp. 378, 388, 392, 393, 394. Waight V. Burrows, 3 Com. B. 343, p, 625. Waine f . Kempter, 1 Fost. &- P. 695, p 519. Wakefield v. Nevy Bar, 6 Q. B. 276, pp ! 613, 617. Wakeham v. Hazleton, 3 Barb. Ch. 148, p. 477. Wakemau v. Gowdy, 10 Bosw. 208, p 497. Walcott V. Vouchee, 3 Bing. 423, pp 427, 438. Walden v. Bolton, 55 Mo. 405, p. 388. Waldron's Case, 2 Strange, 1126, p. 618 Waldron v. Ward, Style, 449, pp. 253 376. Walford v. Fleetwood, 14 Mees. & W, 449; 3 Dowl. & L. 271, p. 204. Walker v. Clay, 21 Ala. 797, p. 585. V. Corlett, 1 D. P. C. 61, p. 137 II. Cuthbert & Stanley, 10 Ala, 213, p. 593. Walker, Ex parte, 6 Jur. N". S. 687, p 546. TABLE OF CASES. 675 "Walker v. Goodman, 21 Ala. N. S. 647, pp. 491, 494, 503, 516. V. Goodrich, 16 111. 341, pp. 335, 417, 523. 1 . Holmes, 22 "Wend. 614, pp. 218, 219, 220. V. Eogan, 1 Wis. 597, p. 326. )). Eushberry, 9 Price, 16, pp. 197, 198. <.. Sargeant, 14 Vt. 247, pp. 610, 612. V. Scott, 13 Ark. 252, p. 405. V. State, 4 "SV. Va. 749, pp. 146, 152, 155, 158. V. Stevens, 79 111. 193, p. 507. V. "SVildman, 6 Madd. 47, pp. 254, 266. 290, 292, 308. "Wall V. Cockerell, 10 H. L. Gas. 229, pp. 464, 467. "Wallace v. Scales, 6 Ohio, 429, p. 235. "Wallace, In re. Law K. 1 P. C. 283, p. 146. "Waller v. Fowler, 1 Sausse & S. 369, p. 437. V. Lacey, 1 Man. & G. 54; 1 Scott N. E. 186, p. 629. Wallis V. Loubat, 2Denio, 607, pp. 176, 549, 558. 579, 587. "STallis, Ex parte, 8 Jur. N. S. 913, p. 87. "Walmesley v. Booth, 3 Atk. 25, pp. 433, 451, 457, 467, 468, 548. Walpole's Administrators v. Carlisle, 32 Ind. 415, pp. 474, 480. "Walpole V. Bishop, 31 Ind. 156, pp. 511, 513. V. Carlisle, 32 Ind. 415, pp. 483, 487, 493. "Walradt v. Maynard, 3 Barb. 584, pp. 415 515. "Walsh V. Shumway, 65 111. 471, p. 556. V. Trevanian, 15 Sim. 577, pp. 44, 316. AValsingham v. Goodricke, 3 Hare, 124, pp. 290, 292. "Walters v. Sykes, 22 Wend. 566, pp. 383, 412. Walton V. Dickerson, 7 Pa. 376, pp. 610, 615. Walton, Ex parte, 5 Barn. & Adol. 824, P- 224. Walton V. Sugg, Phill. N. C. 98, p. 430. Walworth v. Henderson, 9 La. An. 339, P- 367. Wanham, Ex parte, 21 Week. E. 104, pp. 395, 396, 397. Waiburton v. Edge, 9 Sim. 508; 1 Sim. & St. 457, p. 615. Ward);. Heppel, 15 Ves. 297; 16 Ves. 164, p. 622. V. Hollins, 14 Md, 158, p. 385. V. Lee, 13 Wend. 41, p. 506. Warde v. Nethercoate, 7 Taunt. 145, p. 339. V. Warde, 5 Eng. L. & Eq. 217, pp. 274, 294. Warden v. Eden, 2 Johns. Cas. 121, p. 408. Wardle v. Nicholson, 1 jST. & Sev. 335; 4 Barn. & Adol. 469, p. 544. Wardsworth v. Marshall, 2 Cromp. & J. 665, p. 560. Ware v. Baird, 12 Md. 318, p. 284. WarBeld v. Campbell, 35 Ala. 349, p. 241. Warne v. Kempster, 1 Foat. & F. 695, p. 508. Warner v. Griswold, 8 Wend. 665, pp. 417, 506, 523. V. Heiden, 28 Wis. 517; S. C. 9 Am. E. 515, p. 573. V. Hofeman, 4 Edw. 381, p. 572. Warner, Ex parte, 7 Jur. 1016, p. 41. Warren v. Cunningham, 1 Gow. p. 71, 541. V. Eddy, 13 Abb. Fr. 30, p. 438. V. Hawkins, 49 Mo. 137, p. 457. V. Paine, 3 Barb. Oh. 213, pp. 221, 223. ij. Sprague, 4 Edw. Ch. 416, p. 455. Warren, In re, 1 Har. & W. 113, pp. 151, 154. Washington V. Johnson, 7 Humph. 458, p. 412. Waters v. Grace, 23 Ark. 118, p. 610. V. Whittemore, 22 Barb. 593, pp. 81, 176. Watson V. Bank, 5 Rich. 159, pp. 150, 181, 357. V. King, 3 Com. B. 608, pp. 390, 391. V. Mercer, 8 Peters, 88, p. 69. V. Muirhead, 57 Pa. 161, pp. 480, 483, 507, 518, 520. V. Murriell, 1 Car. & P. 307, pp. 235, 236. V. Eeynolds, 1 Moody & M. 1, p. 520. Watts V. Blaney, 1 Dowl. & L. 203; 7 Jur. 854, p. 173. V. Collins, 1 Eyan & M. 284; 2 Car. & P. 71, p. 545. V. Porter, 3 El. & B. 743, pp. 484, 493, 508, 515, 520. Watts, Ex parte, 1 D. P. C. 512, p. 137. Weathers v. Eoe, 4 Dana, 474, p. 382. Weaver v. State, 24 Ohio, N. S. 584, p. 215 Webb, Ex parte, iD.&D. 641, p. 98. Webb V. Baird, 6 Ind. 13, p. 324. r). Browning, 14 Mo. 354, pp. 549, 553, 556, 568. 585, 564. V Hopp, 14 Mo. 354, p. 549. V. Ehodes, 3 Bing. N. C. 732; 4 Scott, 497, p. 559. V Taylor, 1 Dowl. & L. 676; 8 jur. 39, p. 201. Webber v. Nicholas, 5 L. J. P. C. 19, p. 608. Weed V. Bond, 21 Ga. 195, p. 586 Weeks v. Argent, 16 Law J. N. b. H-x. 210, pp. 256, 280, 44. Weisse v. New Orleans, 10 La. An. 46, W^'ld v'. Crawford, 2 Stark. 585, p. 545. Welch V. Pribble, 1 Dowl. & E. 215, pp. 82, 99. 676 TABLE OF CASES. Welland v. Truman, 1 Boa. & P. 629, 205. Welles V. Trahern, Willes, 240, p. 197. Wells V. Hatch, 43 N". H. 246, pp. 438, filO. V. Middleton, Cox, 112, 125, pp. 450, 459, 467, 589, 166. Cochran, 63 N. Y. 181, p. Hole, 1 Doug. 338, pp. 606, 608, 609, 622, 614. V, Lindsey, 1 How. (Miss. Welsh V. V. Wenaus p. .378, 384. 605, )557, Wendell v. Lewis, 8 Paige, 613, p. 569. V. Van Rensselaer, 1 Johns. Ch. 344, pp. 453, 462, 469, 486. West V. Bull, 12 Ala. 340, pp. 380, 405. V. Houston, 3 Har. (N. J.) 15, pp. 312. 344, 345. V. Eaymond, 21 Ind. 305, pp. 457, 458, 587. Western v. Council, 2 Peters, 449, p. 79. Westaway v. Frost. 17 Law J. N. S. Q. B. 286; pp. .368, 52.3, 140, 151. Wetherbee v. Ezekial, 25 Vt. 47, p. 254. Weymouth, Ex parte, 5 Dowl. & L. 60, p. 98. Whatley, In re, 20 Beav. 576, p. 544. Whatton, Ex parte, 5 Barn. & Aid. 824, p. 182. Wheatley v. Williams, 1 Mees. & W. 553, pp. 259, 288, 294, 308, 310, 319, 307. Wheeler's Case, 1 Wils. 298, p. 198. Wheeler, Ex parte, 3 Ves. & B. 21, p. 545. Wheeler «. Hill, 16 Me. 329, p. 286. V. Pounds, 24 Ala. 472, p. 164. V. Williard, 44 Vt. 640, pp. 457, 465. Whelan v. Whelan, 3 Cowen, 537, p. 452. Whitcher, In re, 13 Mees, & W. 549; 2 Dowl. & L. 407, p. 546. White V. Bank of United States, 6 Hamm. 539, p. 478. White, Case of, 6 Mod. 18, p. 142. White V. Gainer, 2 Bing. 23, p. 621. V. Harlow, 5 Gray, 463, p. 615. V. Hafiaker, 27 111. 349, pp. 224, 455. V. Hildreth, 13 N. H. 104, p. 383. V. Lady Lincoln, 8 Ves. 363, p. 44. V. Roberts, 4 Dana, 172, pp. 580. V. Royal, 1 Bing. 21, p. 612. V. Teal, 12 Ad. & E. 106, p. 624. V. Washington, 1 Barnes, 302; 2 Barnes, 4, pp. 232, 474, 477, 483. V. Whalley, 40 How. Pr. 353, p. 460. Whitechurch v, Wortliington, Ca. Pr. 66, p. 329. Whitehead v. Ducker, 11 Smedes & M. 98, pp. 625, 629. V. Greetliam, 2 Bing. 464, pp. 44, 508, 519, 521. ('. Kennedy, 7 Hun, 230, p. 457. Whitehead v. Lord, 7 Ex, 591 ; 21 Law J. 239, pp. 329, 335, 424, 4.37, 438, 525, 560, V. Low, 7 Ex. 691, p. 579. Whitfield V. Moojen, 1 Fost. & F. 290, p. 162, Whiting 4). Barney, 30 N. T. 330, pp. 253, 254, 261, 289, 315. Whitney v. Ex. Co. 104 Mass. 152, p. 507. Wieland v. White, 109 Mass. 392, pp. 378, 382, 398. Wickham ii. Oonkling, 8 Johns. 20, p. 163, Wigg V. Rook, 6 Mod. 86. p. 329, Wiggw. Simonton, ]2 Rich. 583, p. 242. Wiggins V. Peppin, 2 Beav. 403, pp. 329, 343. Wilcox V. Executors, 4 Peters, 172, p. 482. V. Plummer, 4 Peters, 172, pp. 44, 472, 509, 529. Wiley V. Pratt, 23 Ind. 628, p. 360. Wilkins v. Anderson, 11 Pa. 399, p. 215. V. Stridger, 22 Oal. 231, p. 390. Wilkinson v. Grant, 18 Com. B. 319; 25 Law J. Com. P. 233, p, 333. V. Griswold, 12 Smedes & M. 669, pp. 479, 507, 524. V. Holloway, 7 Leigh, 277, pp. 380, 401, 405. Willand, Ex parte, 11 Com. B. 544, p. 183. Willard v. Danville, 45 Vt. 93, pp. 420, 421, V. Goodrich, 31 Vt. 597, p. 410. Wilier V. Portland, 3 Ves. 494, p. 166. Willett V. Chambers, Cowp. 814, p. 44. Williams v. Barber, 4 Taunt. 193, p. 542. V. Butler, 35 111. 544, pp. 347, 360. V. Douglas, 5 Beav. 83, p. 182. Ex parte, 4 Durn. & E. 496, p. 545. Ex parte, 28 Beav, 465, p. 162. V. Faith, 1 Doug. 189, pp. 544, 563. V. Fitch, 18 X. Y. 550, pp, 258, 271. u. Fowler, 1 McClel. & T. 269, p. 563. V. Glbbs, 5 Ad. & E. 208, pp, 438, 475, 488, 495, 496. V. Griffith, 2 Dowl. N. S. 281; 10 Mees. &W. 125, p. 539. V. Jones, 5 Barn. & C, 108, pp. 224, 557, 562. V. Mundie, 1 Ryan & M. 31 ; 1 Car. Sa P, 158, pp. 253, 254, 269, 290. u. Nash, Hardw, 131, p. 329. V. Nicholas, 1 Dowl. N. S. 841, p. 543, V. Odell, 4 Price, 279, pp. 545, 548. V. Protherall, 5 Bing. 309, p. 164. TABLE OF CASES. 677 Williams v. Keed, 3 Mass. 405, pp. 422, 444, 441, 494, 498. V. Smith, 14 Com. B. N. S, 596, 241, 242. V. Tatnell, 29 111. 553, p. 407. ■Williamson v. Moriaty, 19 "Week. R. 819, p. 466. (!. Sammons, 34 Ala. 691, p. 163. Willmont v. Meserole, 48 How. Pr 430 pp. 137, 220. "Wills r. Kane, 2 Grant Cas. 60, pp. 556, 572. "Wilmerdings v. Fowler, 14 Abt. Pr. N. S. 249; S. C. 45 How. Pr. 142, pp. 174, 175. "Wilmott V. Elkington, 1 Nev. & M. 749, p. 172. "Wilson V. Bank, 6 Leigh, 570, p. 3S6. V. Burr. 25 "Wend. 586, pp. 549, 558, 563. V. Coffin, 2 Cush. 316, pp. 483, 497, 503, 511, r. Godlove, 34 Mo. 337, p. 279. V. Gotteridge, 4 Dowl. & E. 737: 3 Barn. & C. 157, p. 545. V. Jenning, 3 Ohio St. 528, p. 412. V. Knapp, 8 Dowl. 426, p. 100. V. Northrop, 4 Dowl. 441, p. 159. V. Railroad, Law. E. 14 Eq. 477, p. 288. V. Rastall, 4 Term Rep. 759, pp. 257. 263, 264, 265, 313, 315, 320. V. Euss, 7 Shep. 420, p. 571. V. Round, 4 Giff. 416: 10 Jur. N. S. 34; 12 "Week. R. 402; 9 L. T. N. S. 675, p. 611. V. Spring, 64 111. 14, p. 392. V. State, 16 Ind. 392, pp. 221, 454. V. Trout, 7 Johns. Ch. 25; 2 Cow. 195, p. 254. V. Tucker, 3 Stark. 154, pp. 518, 520, 508. V. Turner, 1 Taunt. 398, pp. 388, 392, 408. V. Young, 9 Barr. 101, p. 404. "Wilton, In re, 13 Law J. Q. B. 17, pp. 546, 547. Winchester v. Grovesnor, 48 111. 517, p. 350. "Windsor v. Herbert, 7 Mees.&"W. 375; 9 D. P. C. 237; 5 Jur. 730, p. 539. "Winkelman v. People, 50 111. 449, pp. 155, 161. "Winn V. Crosby, 52 How. Pr. 174, p. 607. Winter v. Payne, 6 Durn. & East, 645, pp. 539, 645. "Winter, Ex parte, 1 Barn. & Aid. 190™, p. 97. Witt V. Ames, 11 Week. R. 751; 8 L. T. N. S. 425, p. 431. Withers v. State, 36 Ala. 252, pp. 142, 146, 155. Wright V. Baldwin, 51 Mo. 269, p. 577. Wright V. Burroughs, 3 Com. B. 344- 4 Dowl. & L. 266, p. 609. V. Castle, 3 Mer. 12, p. 178. V. Cobleigh, 21 N. H. 3.39, p. 610. V. Daley, 26 Tex. 730, p. 405. V. Ligon, 1 Hart. Eq. 166, p. 526. V. Mayer, 6 "Ves. 280, p. 286, V. Meek, 3 Towa, 472, p. 589. V. Parker, 10 Iowa, 342, p. 377. V. Proud, 13 Ves. 138, pp. 450, 452. V. Walker, 30 Ark. 44, p. 460. Woburn v. Henshaw, 101 Mass. 193, pp. 258, 288, 293. Wolf V. Trochelman, 5 Eobt. 611, pp. 427, 438, Wolley, In re, 11 Bush, 95, pp, 161, 181, Wood's Case, 7 Leigh, 743, p. 215, Wood's Case, 1 Hopk, Ch, 6, p, 73, Wood V. Dawes, 18 Ves, 128, p, 164, V. Downs, 18 Ves, 127, pp, 450, 461, 459, ■«, Douries, 18 Ves, 120, p, 589. V. Griffith, 1 Swanst. 66, p. 164. V. Hopkins, 2 Pen, (N, J,) 689, pp, 381, 425, V. Plant, 1 Taunt. 45, pp, 326, 434. V. Thornby, 38 111, 464, p, 315, Woods V. Woods, 4 Hare, 83, p, 264, Woolwright, Ex parte, 1 Har, & W. 517, p, 94, Worman, In re, 1 Hurl, & C, 636: 32 Law J, Ex. 83; 11 Week. E. 26; 7 L. T. N. S. 249, p. 179. Worrall v. Johnson, 2 Jacob & W. 218, pp. 609, 612, 613, 616. Worsley v. Scarborough, 3 Atk. 392, p. 407. Worton V. Smith, 6 J. B. Moore, 110, p. 312. Wright's Case, 12 Com. B. N. S. 705, pp. 155, 161. Wright V. Meek, 3 Greene, 472, p. 166. Wyatt V. Buell, 47 Cal. 624, p, 216, Wycoff V. Bergen, 2 Coxe, 214, p, 414, Wylie V. Coxe, 15 How, 416, pp. 556, 680, 598, 610, 628. Wyllie V. Pollen, 32 Law J, Ch. 782; 11 Week, E. 1081, pp. 333, 408. V. Phillips, 4 Scott. 474; 5 D. P. C. 644; 3Bing. (N. C.)776, p. 377. Wynn v. Wilson, Hemp. 688, p. 360, Wynne v. Wynne, 2 Scott, N. R. 615; 9 D. P. G. 396, p. 427. Yale, Ex parte, 24 Cal. 241, pp. 68, 76. Yardley, k Elliott, Hob. 8, p. 220. Yates V. Freckleton, 1 Doug. 623, pp. 44, 375, 377. V. Horanson, 7 Eobt. 12, p. 364. V. Lansing, 5 Johns. 283, pp. 143, 169. Yeatman, Ex parte, 4 Dowl. O. S, 304; 1 Har, & W. pp. 510, 174, 689. 678 TABLE or CASES. Yoakum v. Tilden, 3 W. Va. 167, p. 403. Yoe V. People, 49 111. 410, p. 214. Yordon v. Hess, 15 Johns. 492, pp. 257, 261, 263, 311, 314. Young V. Dearborn, 27 N. H. 324, pp. 610, 625. V. Dowlman, 3 Younge & J. 24, p. 100. V. English, 13 Law J. Ch. N". S. 75, p. 613. V. Walker, 16 Mees. & W. 446, pp. 539, 575. Young V. Wright, 1 Camph. 140, pp. 388, 389, 390. Young, Ex parte, 13 Q. B. 663, p. 95. Z. Zabel V. Schroder, 35 Tex. 308, p. 310. Zeigler v. Hughes, 55 111. 288, pp. 454, 457, 460, 465. Zug V. McLaughlin, 23 Ind. 170, p. 441. INDEX. INDEX. Note. — The reference is to the page of the volume. A. Abandonment— of suit, liability for, 525. Abode of client — compelling disclosure as to, 170. Accounts— rendering, notifying client as to, 4i5, 468. Accounting— and payment, 514. Acting in excess of authority— liahility for, 236. Acting in other capacities— 224. Acting for unqualified persons— 224. Actions for fees— 531. See LiABiLiTT OF Client. Actions on undertakings— liability to, 235. Acts done— liability for, 239. Address of client— disclosing, 312. Admission to practice— 80-125. admission, 80. admission and permission to practice essential, 81. old regulations as to admission and practice in England, 82. the articled clerks of England — persons contracting, 84. service under the articles, 86. continuous service, 88. holding other offices, 89. service under partners, 89. affidavit necessary, 90. assignment and discharge of articles, 90. disputes between clerk and master, 91. the application to practice under the English system, 92. examination and admission, 93. the certitlcate, 97. registration of names, 98. practicing in the names of each other, 99. effect of want of qualification, 99. readmission, 100. statutory regulations in England, 100. solicitors under the Supreme Court of Judicature Acts, 106. Colonial Attorney's Belief Act, 1874, 107. statutory regulations in Ireland, 108. statutory regulations in Scotland, 115. statutory regulations and rules in the United States, 115. in the United States Supreme Court, 116. in Alabama, 117. in Arizona Territory, 119. 682 INDEX. Admission to practice— Continued. in Arkansas, 120. in California, 120. in Dakota Territory, 123. in Illinois, 124. in Iowa, 124. in Nevada, 125. in New York, 125. in Pennsylvania, 130. Admission in France— 16. Admission of barristers — in England, 26. Admission of -women — as attorneys, 76. Admission — ^general license by reason of, 341. Admissions — of attorneys, as binding the client, 388. implied admissions, 393. admissions to prove attorney's own authority, 393. admissions of clerks, 394. recalling admissions, 394. whether privileged, 304. Adverse party — effect of attorney's acts as against, 387. Adverse retainer — duty of disclosing, 444. Advocates — 17, 38. in Rome, 2. AfBdavit — answering matters of, 179. Agents— retainer by, 333. Agreements— extortionate, 4C4. American bar — difference between English and, 33. Ancient mode of appearance— by attorney, 335. Appearance by attorney — and authority to appear, 335-370. ancient mode of appearance, 335. appearance at the civil law, 340. general license by reason of admission, 341. presumption of authority to appear, 342. adverse party may presume authority, 345. denial of authority — requiring its production, 346. effect of authorized appearance, 349. unauthorized appearance — dismissal of suit, 351. judgments obtained through unauthorized appearance, 352. interference with judgment by court of equity, 354. collateral attack, 355. unauthorized appearance— foreign and domestic judgments, 355. effect of unauthorized appearance on innocent third parties, 360. question of attorney's pecuniary responsibility, 361. laches, 365. appearance for a portion of several parties or for all parties, 366. appearance for a partnership, 367. appearance by attorney in appellate courts, 367. defendant's remedy against attorney, 368. remedy of the party wliose name is used, 369. withdrawal of appearance, 369. practice, 370. Application to practice — in England, 92. Appropriation — of money by attorneys, 510. of payments on account of compensation, 628 . INDEX. 683 Arbitrate— authority to, 403. Argument of counsel— privilege of, 205-216. under control of court, 210. confined to evidence, 211. on the law, 211. comments on persons and their actions, 211. limiting time of, 215. responsibility of counsel in, 215. publication of, 216. Arrest— privilege from, 198. Articles- defects in, 161. Articled clerks in England- 84^91. Assignment of debt— as afCecting compensation, 583. Assignments— fraudulent, to deprive attorney of his fees, 599. Associates — negligence of, 507. Athenian courts— 2. Attachments — against attorneys, 180. Attorneys and counsellors at law^— historical sltetch of, 1-36. definitions and classifications, 37-61. See Definitions. vocation, nature of the office, 62-79. See Vocation. admission to practice, 80-131. See Admission. summary jurisdiction over, 132-195. See Summary Jurisdiction. privileges as officers of the court, exemptions, 196-217. See Privileges and Exemptions. disabilities by reason of their profession, 218-228. See Disabilities. liability to third parties, 229-250. See Liability to Third Parties. privilege of professional communication, 251-321. See Privileged Communications. retainer and authority to appear, 322-371. See Betainer and Appearance. authority and powers, 372-439. See Authority and Powers. duties and dealings with client, 440-469. See Duties and Dealings. liability of attorneys to clients, 470-530. See Liability, Negligence. liability of client to attorney, 531-631 . See Liability op Client. Attorneys — women as, 76. Authority and powers — of attorneys, 373-439. results flowing from the retainer, 373. law of principal and agent applicable, 373. authority and powers, 374. things that an attorney may do by virtue of his general retainer, 376. things an attorney may not do by virtue of his general retainer without special authority, 380. control over conduct of suits and proceedings, 385. when attorney may exercise his discretion, 386. 684 INDEX. Authority and povfreis— Continued. binding effect of attorney's acts as against the adverse party, 387. authority to make admissions oinding upon the client, 388. implied admissions, 393. attorney's admissions to prove his own authority, 393. admissions of clerks, etc., 394. recalling admissions before judgment, 394. authority to compromise litigated claims, and to make settlements, 394. negligent compromise, 400. notice of want of authority to compromise, 401. no compromise after judgment, 401. authority to demand and receive payment. 401. authority to refer or submit to arbitration, 403. collateral matters, 405. authority to stipulate that cause of action shall not abate, 406. authority to stipulate for continuance, 406. authority to receive notices, 407. effect of judgment on authority, 409. control over judgment and execution, 410. authority to satisfy judgment, 413. vacating judgment, 413. authority after judgment, 414. auxiliary proceedings, 415. authority of law partners, 415. authority of law clerks, 417. authority to employ substitutes, 418. ratification by the client, 422. duration of authority, 423. termination of the relation and of the authority, 425. by revocation of authority, and change and substitution of the at- torney. General rules, 426. in England, 430. in United States, 434. change after judgment, 436. effect of the substitution on the attorney changed, 436. by withdrawal of attorney, 437. by death of attorney or client, 438. Authority to appear— 322. See Appearance. Authority— liability for acting iu excess of, 139, 236, 508, 509. Authorized appearance— effect of, 349. Auxiliary proceedings— authority over, 415. Avocats— 15. Avoues — 15. Aiwards — attorney's lien on, 631. B. Bail — restrictions as to becoming, 218. Barratry— 162, 596. Barristers — 162. Bills of cost— under the Englisb system, 538-648. Blunders in process — attorney's liability for, 476. INDEX. 685 Books of attoruey— 525. Both parties— appearing for, 220. employment by, 447. Burden of proof —as to privileged communications, 267. in cases of negligence, 492. c. Calling to the bar— in England, 27. Care — required from attorney, 471-480. Champerty— 164. 586-599. See Conditional and Contingent Fees. Change of attoruey^26-436. effect on compensation, 604. Choses in action— purchasing, 221. Civil law— advocates in, 38, 340. Classifications— 37-61 . See Definitions. Clerks — admissions of, 394. powers of law, 417. privileged communications to, 290. Client — protected in communications to counsel, 292. ratification by, 422. liability to attorney, 531. See LiiiBiLiTY OP Client. Co-defendants — correspondence between, whether privileged, 315. Collateral matters — and privileged communications, 308. authority in, 405. Collection and appropriation of money — 510. Collecting money — duties as to, 445. Collusive settlements— and attorneys' liens, 622. Colonial attorney's relief act— 107. Commissions— for collecting money, 598. Communications— held privileged, 268. not privileged, 275. See PiiiviLEGED Communications. Compensation — of attorneys, 531. See Liability op Client . Compromise — attorney's power to, 394. negligent, 400. notice of want of authorit.v to, 401. none after judgment, 401. propositions to, whether privileged, 316. Conditional and contingent fees — 586-599. contracts held champertous, 590. contracts held not champertous, 594. maintenance and barratry, 596. contingent fee not within Statute of Frauds, 597. right to contingent fee as against attaching creditor, 597. contract of indemnity, 598. merger of the contract, 598. death of client, .598. commissions for collecting, 598. 686 INDEX. Conditional and contingent ieee— Continued. fraudulent assignments, 599. measure of damages, 599. Conflicting interests— 454. Contempts— by attorneys, 180-185. Contingent fees— 586-599. See Conditional Pees. Continuance — authority to agree to, 406. Contract of retainer — 332. Contracts for fees — 579-599. new, after retainer, 601. Control— over suits, 385. Control of court — over argument, 210. Conveyancers — privileged communications to, 290. Corporations — retainer by, 333. Costs — summarily imposing, 178. attorneys' liability for, 231, bills of, 538-548. Counsel— 54. right to, 323. Criminal oases — rule as to privileged communications, 319. Cross-examination of attorneys — 287. D. Dealings -with client— 450-469. transactions upheld, 452. transactions not upheld, 453. conflicting interests, 454. mixing funds, 456. purchase of client's property, 456. instances, 460. exceptions to the rule, 462. extortionate agreements, 464. purchase of subject-matter of controversy, 465. purchase of claims, 465. information received from client, 466. investment of moneys, 466. gifts from client, 467. rendering accounts, 468. Death of party — effect on retainer, 335. Death of attorney or client— 438. Death of attorney — effect on compensation, 598. Deeds — privileged communications, applied to, 298. Defects in articles— 161. Definitions and classifications — 37-61. different designations applied to lawyers, 37. advocates, 38. attorney at law, 41. barrister, 44. counsel, 54. lawyer, 54. t proctor, 54. INDEX. 687 Definitions ana ' classifications— Gonimued. ' Serjeant at law, 55. ' solicitor, 37. use of term.s, 59, Delivery of documents — 171. Demands for suit— purchasing, 221. Denial of authority— to appear, 340. Diligence— required from attorney, 471-480. Disabilities of attorneys— 218-228. restrictions as to becoming bail or surety, 218. as to appearing for both parties, or on opposite sides, 220, as to purchasing choses in action or demands for suit, 221. as to acting in other capacities, 224. as to acting for unqualified persons, and permitting others to use their names, 224. when counsel in a cause may be a witness, 225. competency as a witness generally, 228. opinions as an expert on matters connected with his specialty, 228. Disbarring — 140. See Stbikikg fkom Rolls. Disclosures — as to abode or occupation of client, 170. Discretion — when attorney may exercise his, 386. Dismissal of case — effect on compensation, 603. Dissolution of partnership— effect on retainer, 335. Documents — compelling delivery of, 171. whether privileged, 293, Domestic judgments — and unauthorized appearance, 355. Duration of authority — 423. Duties to-ward client— 440-450. how the attorney is to fulfill his trust, 440, degree of fairness and good faith required, 441. legal duties toward client, 443. duty of disclosing adverse retainer, 444, duties in preparing for trial, 444. duty as to notifying client as to rendering accounts, 445. duties in collecting money, 445. payment of money, 447. duties as to sales of real property — employment by both parties, 447. what the attorney undertakes to do in making a purchase, 448. duties as to investigating titles, 449. E. Employment of attorney— 333. evidence of in actions for fees, 565. Employment— by both parties, 447. England— change of attorney in, 430. admission in, 100-107. compensation of attorneys in, 535-548. Equitable interference- to protect attorney's lien, 624. Equity causes— privileged communications in, 266. Establishing proof-of relation, 326. Evidence— in cases of negligence, 498. 688 INDEX. Evidence — Continued. in actions for fees, 561-567, 569. Examinations — in tlie inns of court, 29. of attorneys in England, 93. Excess of authority— acting in, 236. Execution — control over, 410. Exemptions— 196-218. See Privileges of Attornets. Expert — opinions as an, 228. Express contract — compensation under, 581. Extortionate agreements— 464. Extra professional communications — 317, 319. F. Fairness and good faith — required from attorneys, 441. Federal courts— privileged communications in, 266. Fees— liability for, 231. actions for, negligence as a defense to, 503. effect of non-payment of, 520. Fees of attorney— 531. See LiABinTY of Client. Foreign judgments— and unauthorized appearance, 355. Fraudulent transactions — rule as to privileged communications as applied to, 304. assignments to deprive attorney of his compensation, 599. French bar— 10, 12. Gr. Gifts from client— 467. Ignorance of the law — liability for, 477. Implied admissions — 393. Implied obligation — to pay attorney's fees, '560. Indorsement of -writ — liability for, 234. Information received from client— 466. Inns of court— 21. regulations as to legal education, 26. admission of students, 26. keeping terms, 27. calling to the bar, 27. certificate to practice under the bar, 28. lectures and examinations, 29. Interpreters — privileged communications to, 290. Investment of moneys— 466, 517. Investigation of titles— liability for, 517. Ireland — admission to practice in, 108. INDEX. 689 J. Joint liabUity-of attorney and client, 242. Judgments— obtained by unauthorized appearance, 352. equitable control over, obtained by unauthorized appearance, .■554 collateral attack, 355. foreign or domestic iudgments, unauthorized appearance, 355. effect of, on authority, 409. and execution, control over, 410. authority to satisfy, 413. authority to vacate, 413. authority after, 414. Judicature acts— of England, 106. solicitor's fees under, 53fi. Judiciary— responsibility of, for' striking from the rolls, 167. Jurisconsults — 6. L. Laches— in cases of unauthorized appearance, 365. La'w — argument on the, 212. Lectures and examinations— in the inns of court, 29. Liability of attorneys — to their clients — negligence— remedies of clients against their attorneys by action, etc. , 470-528. liability to client, 470. what skill, care, and diligence required, 471. skill required, 473. liability for mistakes, 475. liability for blunders in process and formal proceedings, 476. liability for ignorance of the law, 477. effect of locality on the rule, 479. attorney not expected to guarantee success, 480. care required, 480. diligence required, 480. liability for negligence, 483. neglect of attorney is neglect of client as to third parties, 485. usual remedy, 485. legal and equitable actions, 487. negligence in conduct of a cause, 488. position of burden of proof in cases of negligence, 492. instances of negligence, 492. pleading and evidence in actions for negligence, 498. sufficient count in an action for negligence, 502. negligence as a defense to an action for fees, 503. negligence of associates, 507. liability for matters not litigated, 507. liability for acting in excess of authority, 508. liability for acting without authority, 509. collection and appropriation of money, 510. payment of money, 513. A. & C— 44, 690 INDEX. Liability of attomeyB— Continued. accounting and payment, 514. liability for disclosing secrets, 516. investigation of titles — investment of money — sufficiency of securities, 517. advice as to titles, 520. effect of nonpayment of fees, 520. liability of law partners, 523. attorneys' books, 525. liability for abandonment of suit, 525. other liabilities, 526. not liable for acts not within the scope of their profession, 526. measure of damages, 527. Statute of Limitations, 528. Iiiability of clients to attorneys— I. — Remedy by action. the Roman honorarium, 532. in the Middle Ages, 534. in England, 535. solicitors' fees under the Judicature Acts, 536. solicitors' fees in England under agreements, 536. bills of cost, under the English system, 538. delivery of the bill, 540. requisites of the bill, 542. propriety of the charges, 543. liability to be taxed, 545. referring bill to taxation, 545. taxation of bill independent of statutory provisions, 548. compensation in the United States, 548. compensation under general retainer, 552. actions for compensation, 556. liability of client, 559. implied obligation, 560. pleading and proof, 561. proving retainer — evidence of employment, 565. evidence for plaintiff, 567. evidence for defendant, 669. attorneys' services — when considered as necessaries, 572. measure of compensation, 573. statute of Limitations, 579. compensation under special agreement, 579. express contract, 581. assignment of debt, 583. agreement for fixed sum in gross, 583. promissory note for services, 585. contingent or conditional fees — champerty, 586. contracts held champertous, 590. contracts held not champertous, 594. maintenance and barratry, 596. contingent fee not within the Statute of Frauds, 597. right to contingent fee as against attaching creditor, 597. contract of indemnity, 698. merger of the contract, 598. death of client, 598. commissions for collecting, 598. INDEX. 691 Liability of clients to attorneys— Oontinued. fraudulent assignmenta, 599. measure of damages, 599. compensation of substitutes, 599. taking new security for fees pending relation, 600, making new contracts for fees after retainer, 601. effect of withdrawal from case, 602. effect of dismissal of case, 603. effect of change of attorney, 604. II.— The remedy by lien, 605-631. lien of attorney, 605. two kinds of lien — general and particular, 607. the particular or charging lien, 609. the general lien, 612. the so-called " retaining lien," 614. lien on papers, 615. summary jurisdiction over delivery of papers as affecting the lien, 619. waiver or loss of the lien, 621. when superseded, 622. collusive settlements, 622. remedies on the lien, 623. equitable interference to protect the lien, 624. set-off as against lien, 626. appropriation of payments on account, 628. settlements between the parties as affecting the lien, 629. liens on partnership debts, 630. liens on sums awarded, 631. Liability to third parties— 229-244. general liability to third persons, 229. liability for costs and fees, 231. liability for indorsement of writ, 234. liability to actions on undertakings, 235. liability for acting in excess of authority, 236. liability in cases of malpractice, 238. liability for acts done, 239. liability for malicious prosecution, 239. joint liability of attorney and client, 242. Liability of third persons to attorneys — 244-250. slander of attorneys, 244. expressions held slanderous, 245. expressions held not slanderous, 246. other expressions, 246. the evidence, 248. Liability on undertakings— 136. Lien of attorneys— to secure their compensation, 605-631. two kinds of lien, general and particular, 607. the particular or charging lien, 609. general lien, 612. retaining lien, 614. lien on papers, 615. summary jurisdiction over delivery of papers as affecting the lien, 619. waiver or loss of the lien, 621. when superseded, 622. collusive settlements, 622. 692 INDEX. Lien of attorneys — Continued. remedies on the lien, 623. equitable iuterferenoe to protect the lien, 624. set-off as against the lien, 626. appropriation o£ payments on aecount, 628. settlements between the parties as affecting the lien, (>2;). liens on partnership debts, 630. liens on sums awarded, 631. Limitations— Statute of, in cases of negligence, 529. in actions for fees, 579. Limiting time — of argument, 215. Loss of attorney's lien— 621, 622. M. Maintenance— 162, 596. Malicious prosecution — liability for, 239. Malpractice— liability for, 238. Mandamus — to restore attorney to roll, 160. Measure of damages — in oases of negligence, 527. in actions for fees, 573, 599. Measure of compensation— 573, 599. Merger of contracts — for fees, 598. Middle ages — lawyers in, 9. compensation in, 534. Mistakes — attorney's liability for, 475. Mixing funds — 456. Money— compelling payment of, 173. investment of, 466. collection and appropriation of, 510. payment of, 513, 514. investment of, 517. N. Nature of attorney's oiBce — 62-79. See Vocation. Necessaries — attorney's services, when considered as, 572. Negligence— liability for, 483-507. neglect of attorney deemed neglect of client, 485. usual remedy, 485. legal and equitable actions, 487. negligence in conduct of cause, 488. position of burden of proof, 492. instances of negligence, 492. pleading and evidence, 498, 502. negligence as a defense to an action for fees, 603. negligence of associates, 507. Negligent compromise— 400. Notice to attorney— notice to client, 407. INDEX. 693 o. Occupation of client— compelling disclosure as to, 170. Offenses— by attorneys, 187. Office — nature of attorney's, 62-79. See Vocation. Opposite sides— appearing on, 220. Papers— in attorney's hands, 171. lien on, 615. Parol retainer— 329. Partnership— debts and attorneys' liens, 630. Partnership — dissolution of, effect on retainer, 335. Partners— powers of law, 415. liability of law, 523. Patron and client— 4. Payment of money— compelling duties as to, 173, 447, 513. Payment — authority to demand and receive, 401. Pecuniary responsibility — of attorney in cases of unauthorized appearance, ■361. Permitting others to use names— 224. Pleading— in cases of negligence, 498, 502. Pleading and proof — in actions for fees, 561. Practice — restoration to, 154. striliing from rolls, 155. cases of unauthorized appearance, 370. Practicing — in other's names, 99. Preparing for trial — duty as to, 444. Presence of both parties — effect on privileged communications, 289. Presumption of authority — to appear, 342-345. Principal and agent — law of as applied to attorneys, 373. Privilege of professional communications — 252-320. relative duties, 252. origin of the rule as to privileged communications, 252. rule not confined to pending suits, 253. general rules, 262. rule in the Federal Courts, 266. rule in equity causes, 266. burden of proof, 267. importance of communication not a test, 267. injunction of secrecy not necessary, 267. communications held privileged, 268. communications held not privileged, 275. disclosures allowed for protection of attorneys, 283. professional employment necessary, 284. but a formal retainer not necessary, 285. mode of imparting privileged information, 286. effect of the client's calling the attorney as a witness, 286. 694 INDEX. Privilege of professional coxnmanicationB— Continued. right of cross-examination of attorney, 287. effect of attorney making himself attesting witness, 288. effect of the presence of both parties, 289. what persons the privilege includes, 289. clerks, interpreters, conveyancers, 290. client also protected from testifying, 292. rule as applied to documents, 293. deeds, 298. testamentary communications, 301. fraudulent transactions, 304. admissions, 304. acts done, 305. matters observed, 307. communications in view of breaking the law, 307. collateral mattei^s, 308. third parties, 311. disclosing address of client, 312. privilege not lost by termination of professional relation, 312. communications made to legal advisers of two parties jointly, 314. correspondence between co-defendants, 315. waiver of the privilege, 315. propositions to oomproinise, 316. information received ektra professionally, 317. information not within the scope of professional duty, 319. rule in criminal cases, 319. course for attorney to pursue when subpoenaed, 320. Privileges of attorneys — as officers of the court, exemptions, 196-218. privilege in general, 196. privilege from arrest, 198. privilege as to suing and being sued, 202. waiver of privilege, 204. privilege of counsel in argument, 205. under control of the court, 210. argument to be confined to the evidence, 211. comments on persons and their actions, 211. argument on the law, 212. limiting time of argument, 215. responsibility of counsel in argument, 215. publication of argument, 216. Process— attorney's liability for blunders in, 476. Proctors— 54. Production of authority — to appear, 346. Production of client — requiring, 170. Promissory note — for services, 585. Property of client— purchasing, 456-462. Protection of attorney— disclosures allowed for, 283. Publication of argument— 216. Purchases— making, 447, 448. Purchasing choses in action— and demands for suit, 221, 465. Purchasing client's property — 456, 460, 462. Purchasing subject-matter— of controversy, 465. INDEX. 695 R. Ratification by client — 422. Readmission in England— lOO. Real property— duties as to sales of, 4i7. Relation — commencement of, 322. establishing, 326. Remedy — in cases of negligence, 485-487. on attorney's lien, 623. of defendant against attorney bringing suit without authority, 368. of party whose name is used, 369. of attorney against client, 531. See Liability of Client. Responsibility of counsel — in argument, 215. Responsibility of judiciary- for striking attorney's name from rolls, 167. Restoration to practice— 154. Restrictions — as to becoming bail or surety, 218. Retainer— 322-335. commencement of the professional relation, 322. the right to counsel, 323. establishing the relation of attorney and client, 326. the retainer — written or parol, 329. contract of retainer, 332. general and special employment, 333'. retainer by one as agent for another, 333. retainer by corporations, 333. efEect of dissolution of partnership on retainer, 335. effect of death of party on retainer, 335. results flowing from retainer, 373. what attorney may do by virtue of retainer, 376. what he may not do, 380. compensation under general retainer, 552. proving retainer in actions for fees, 565. Revocation of authority— 426. Right to counsel— 323. Roman lavryers — under the Empire, 7. Roman honorarium— 532, Rome — advocates in, 2-4. s. Sales of real property— duties as to, 447. Satisfy judgment— authority to, 413. Scotland- lawyers in, 31. admission in, 115. Secrets— liability for disclosing, 516. Securities— liability for sufficiency of, 517. taking new, for fees, 600, 601. Serjeants at la-w— 55. Service under articles in England- 86-89. 696 ' INDEX. Set-off— as against attorney's lien, 626. Settlements — between parties and the attorney's lien, 622, 629. Skill — required from attorney, 471, 473. Slander of attorneys— 244-250. Solicitors— 57. Special authority — when necessary, 380. Special agreement — compensation under, 579-585. Statute of Frauds — contingent fee not within, 57. Statutory regulations — as to admission in England, 100, 106, 107. Ireland, 108. Scotland, 115. United States, 115. United States Supreme Court, 116. Alabama, 117. Arizona, 119. Arkansas, 120. California, 120. Dakota, 123. Illinois, 124. Iowa, 124. Nevada, 125. New York, 125. Stipulate— authority to, 406. Striking from rolls— 140-167. misconduct authorizing, 150. restoration, 154. practice, 155. whether mandamus will lie, 160. for defect In articles, 161. at attorney's own request, 166. responsibility of judiciary for, 167. Substitution— of attorney, 426. Substitutes — employment of, 418. compensation of, 599. Success — attorney not expected to guarantee, 480. Suing and being sued — privilege as to, 202. Suits — control over, 385. Summary jurisdiction — of courts over attorneys, 132-194., liability to summary jurisdiction, 132. liability on undertakings, 136. for acting without authority, 139. striking from the rolls, 140. instances of misconduct authorizing suspension or disbarring, 150. restoration, 154. practice, 155. whether mandamus will lie, 160, striking from rolls for defect in articles, 161. barratry, 162. maintenance, 162. champerty, 164. striking from the rolls at attorney's own request, 166. responsibility of the judiciary in civil actions for striking an attorney's name from the rolls, 167. INDEX. 697 Summary jurisdiction— Coniinued. compelling disclosure as to abode or occupation of client— renuiring attor- ney to produce client, 170. delivery up of documents, 171. papers in attorney's hands for professional purposes, 171. compelling payment of money, 173. summarily imposing costs, 178. answering matters of affidavit, 179. contempts — attachments against attorneys, 180. contempts in the United States courts, 185. miscellaneous offenses, 187. statutory regulations in England, 188. statutory regulations in Alabama, 189. statutory regulations in Arkansas, 191. statutory regulations in California, 193. statutory regulations in New York, 193. statutory regulations in Pennsylvania, 194. as affecting the attorney's lien to secure compensation, Biy. Supreme Court of Judicature acts— lOii. Surety — restrictions as to becoming, 218. Suspension from bar— 140-167. See Susrji.iKV Jukisdiction and Strikinci from Rolls. T. Taxation of the profession— 79. Taxation of bills of cost — 545-548. Terms — use of, 59. Terms applied to la-wyers - 37-61 . See DEFixmoxs and Classifications. Termination of relation — and authority, 243-425. effect on privileged communications, 312. Testamentary communications— whether privileged, 301. Test-oath oases— 64, 71. Test as to privileged communications— 267. Time of argument— limiting, 215. Titles— investigating, 449. 517. advice as to, 520. Transactions— with client upheld, 452. nfit upheld, 453. IT, Unauthorized appearance— by attorney, 351. judgments obtained by, 352, 360. effect on innocent third parties, 360. effect of pecuniary responsibility of attorney, 361. laches in cases of, 365. remedy of defendant, 368. remedy of party whose name is used, 369. practice, 370. A. & C— 45. 698 INDEX. tJndertakings— liability on, l.'iU, 235. United States Courts — admission in, 116. contempts in, 185. United States— lawyers in, 31. legal instruction in, 32. change of attorney, 434. admission, 115. compensation of attorneys in, 548. Unqualified persons— acting for, 224. Use of terms— 59. V. Vacate judgment— authority to, 413. Vocation of the la-wryer— 62-79. nature of the ofHce, 62. test-oath cases, 64, 71. admission of women as attorneys, 76. taxation of the profession, 79. w Waiver of privilege — as to professional communications, 315. as to attorney's privileges, 204. Waiver — of attorney's lien, 621, 622. Withdrawal— of appearance, 369. of attorney, 437. effect on compensation, 602. ■Witness — calling attorney as a, 286. lawyer making himself attesting, 288. when counsel may be, 225. competency as a, 228. "Women as attorneys — 76. "Writ— indorsement of, liability for, 234. "Written retainer— 329.