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ATTORNIES; Such release being a fraud upon the attorney, as it was executed with notice to all the parties of his lien for his costs. Settlement When, however, three is no notice, and the parties bona fide, and without intention to defraud the attorney, settle or compromise the debt and costs, he cannot proceed against the opposite party. But it seems that if the defendant, after action brought, pay the debt to the plaintiff, without the knowledge of the attorney, and without discharging the costs, the plaintiff has a right to proceed in the action for the recovery of them.36 And after notice, the parties have no right to settle or compromise the costs, or do any act, to prevent the attorney's proceeding in the cause to collect them. If a plaintiff collude with the defendant's bail and attorney, to deprive the plaintiff's attorney of his costs, by settling the debt and accepting a part payment, without his intervention, it seems that he may proceed against the bail, in order to recover such costs. But if the plaintiff and defendant collusively settle the debt and costs upon an execution, in order to defraud the plaintiff's attorney of his costs, the latter cannot sue out a second execution upon the same judgment, to levy his costs, but must apply to the court.39 And where the defendant had been discharged out of the custody of the sheriff, with the consent of the plaintiff, notwithstanding a notice from the plaintiff's attorney to the sheriff's officer, not to release the defendant until the costs were paid; the court held that the sheriff was not liable to pay those costs, or bound to detain the defendant after the plaintiff was satisfied.40

Collusion with bail.

How lien affected by

right of setoff.

The attorney's lien extends only to the net balance due, after the charges of the opposite party in that suit are deducted; and does not affect the equitable right of set-off be

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suits.

tween the parties; and therefore, if in the same action in ATTORNIES. which the plaintiff recovers damages, the defendant recovers costs, the court will allow the one to be set off against the other without regard to the attorney's lien.12 Formerly, it seems that where the set-off was of judgments in distinct suits, Distinct the lien of the attorney was preserved ; but in a late case, a judgment for costs only was set off against another judgment on motion, notwithstanding the attorney's lien, and although the judgment had been assigned to him by his client, and notice given to the opposite party not to arrange the costs; the attorney having had notice that the set-off was claimed at the time he took the assignment of the judgment." But the court will not allow a party, against whom a judgment for costs has purchased. been obtained, to defeat the attorney's lien by setting off a judgment, subsequently purchased, with knowledge of such lien.45

Judgment

In a case in the king's bench it was held, that the attorney's lien attached only on the balance of the costs accruing in the same cause, which are ultimately to be paid over to the one or other party in that cause; and that the plaintiff might set off interlocutory costs, in the same cause, payable by him to the Interlocu defendant against the debt and costs recovered by him on the final result of the cause, notwithstanding the objection of the defendants attorney.46 The lien of an attorney is for the taxed costs, and does not extend to any claim which he may have upon his client for extra services or counsel fees.47

tory costs.

Counsel fees

418 Johns. Rep. 357.

42 1 Johns. Cas. 102. 8 Johns. Rep. 357. 13 Johns. Rep. 306. 1 H. Black. Rep. 23.

43 2 Caines' Rep. 105. 3 Johns. Rep. 247. In Porter vs. Lane, 8 Johns. Rep. 357, it does not seem to have been intended to overrule the former cases the court say that the defendant's charges in that suit may be deducted, notwith, VOL. I.

25

standing the attorney's lien. In
Simson vs. Hart, 14 Johns. Rep.
63, there was no question as to
the attorney's lien.

44 1 Cowen. Rep. 206.
45 4 Cowen Rep. 416.

46 8 East. Rep. 362. And see
further 8. Term. Rep. 407. 1 Tidd.
Pract. 102. 103. 1 Archbd. Pract.
39. and cases there cited.
47 8 Johns. Rep. 335.

PROSECU

TION AND DEFENCE OF ACTIONS.

SECTION III.

OF THE PROSECUTION AND DEFENCE OF ACTIONS IN PERSON OR
BY ATTORNEY.

Common persons.

Who may appear by attorney, and of his authority to act as such.] It is provided by statute, that " Every person of full age and sound mind, may appear by attorney or solicitor as the case may require, in every action or plea, by or against him in any court; or may, at his election, prosecute or defend such action or plea in person; but this provision shall not extend to proceedings in criminal cases: nor shall any person be permitted to appear on the record in any civil cause in person, whilst he has an attorney or solicitor in such cause."1 common law the plaintiff and defendant must in general, have appeared in person; and could not have appeared by attorney without the king's special warrant, by writ or letters patent.2 Corporation, But a corporation aggregate, not being capable of a personal

At

appearance, could only have appeared by attorney appointed under their common seal; and this would seem, the statute not extending to corporations, to be still the case. Where husband and wife are parties to a suit, the husband may appoint an attorney for both.4

1 R. St. P. 3. Ch. 3. T. 1. s. 11. Vol. 2. p. 276.

2 Co. Lit. 128 a. 2 Inst. 249. 378, 1 Mod. 244. 2 Mod. 83. 6 Johns. Rep. 311.

3 Com. Dig. Tit. Pleader, 2. B. 2. Co. Lit. 66. b. sed vide 1 Salk. 192. 1 Tidd. Pract. 106. n. 4 2 Saund. 213.

TION AND

DEFENCE

OF ACTIONS.

Formerly, the authority of an attorney to prosecute or de- PROSECU fend, was derived from a written warrant of attorney, which was required by statute to be taken before a judge of the court and filed; though it was not usual for an attorney to require a written warrant from his client, and the want of it after judgment was cured by the statute of jeofails. But it is now Warrant

provided by statute, that "It shall not be necessary to file any warrant of attorney to authorize any attorney to appear in any court, for either party to an action brought therein, except in cases where it shall be specially required by law." So that a parol authority seems now amply sufficient for all

purposes.

8

abolished

sufficient for

opposite par

ty and court,

The mere appearance of an attorney for the defendant, is Appearance always deemed sufficient for the opposite party and for the court, which will look no further, and will proceed as if he had sufficient authority, and leave the party injured to his action, unless there was fraud or collusion between a party and the opposite attorney. But in every such case where an attorney appears without authority, though the judgment must stand, yet the court will stay all proceedings, and permit the defendant to plead if he have a defence. And it seems that Want of au where an action is brought by an attorney without proper au- plaintiff's thority, the court will set aside the proceedings; for otherwise the defendant might be twice charged.10 When an attorney Attorney once appears, or undertakes to be an attorney for another, he cannot rewill not be afterwards permitted to withdraw himself;"1 but he

thority in

attorney.

fuse to act.

51 R. L. 416. s. 2. 3.

$ 6 Johns. Rep. 302. 37. 1 Salk.

Per. Kent, C. J. 6 Johns. Rep. 86. Cro. Jac. 695. Str. 693. 1

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PROSECU will not be compelled to proceed in the cause and expend money for his client, unless his costs are paid or secured.12

TION AND
DEFENCE

OF ACTIONS.

der neces

sary.

How attorney may be changed, and proceedings on death or removal.] Where an attorney having been retained to defend a cause, has undertaken to appear, the defendant is not allowed to countermand the appearance,13 or change his attorney without Rule or or rule of court, or an order for that purpose; and the acts of the second attorney, unless a regular substitution is shown will be disregarded by the court.14 According to the English practice, it seems that the application for the change of an attorney, may be made either to the court or to a judge at chambers;15 the application is founded on affidavits, and the order, should be, it would seem, in the first instance to show cause; and then if no sufficient cause be shown, an absolute order may be Costs must obtained directing the change.16 In ordinary cases, the party applying for the change will be required to pay the costs of Situation of the former attorney.17 When an attorney is thus changed,

be paid.

new attor

ney.

the new attorney is bound to take notice at his peril, of the rules to which the former attorney was liable: and till an order is obtained the opposite party and his attorney are justified in considering the former attorney as being still employed; and are not bound to take notice of any proceedings in the name of another attorney.18 Therefore, payment to the plaintiff's late attorney changed without leave of court, has been held to be good:19 and notice of justifying bail,20 or a plea put in21 by a new attorney, without any order for changing the

12 2 Johns. Rep. 296.

13 1 Tidd. Pract. 108. 7 Taunt. 47. 12 Mod. 448. et vide 6 Johns. Rep. 107. 108.

14 1 Wendell, Rep. 293.

15 1 Tidd. Pract. 108. 1 Archbd. Pract. 29.

16 1 Dunlp. Pract. 82.83.

17 1 Archbd. 29.

18 1 Tidd. Pract. 108.
19 1 Black. Rep. 8.

20 2 Black. Rep. 1323. Doug. 217. 6 Taunt. 532. S. C. 2 Marsh. 257.

21 6 East. 549.

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