132. Who may be admitted as an attorney and coun- 144. When and by what court an attorney may be re

Act of February 1, 1850, concerning the Office of Attorney-General.

ARTICLE 106, Sec. 1 The attorney-general shall reside and keep his office at the seat of government, and shall not depart from the state without leave of absence from the legislature. He shall be commissioned by the governor, and shall take the oath prescribed by the constitution, and shall give bond, with security to be approved by the governor, in the sum of twenty thousand dollars, conditioned for the faithful performance of the duties of his office.

ART. 107, Sec. 2. The attorney-general shall attend each of the terms of the supreme court, and there prosecute or defend, as the case may be, all causes to which the state may be a party; also, all causes to which any officers of the state, in their official capacity, may be a party; also, all causes to which any county may be a party, other than those in which the interest of the county may be adverse to the state, or any officer of the state, acting in his official capacity; and after judgment obtained in any such cause, he shall direct such proceedings, and sue out such process as may be required to carry the same into execution. shall account for and pay over to the proper officer any money which may come into his hands belonging to the state or any county. It shall also be his duty to assist in all impeachments which may be tried before the senate.

He

ART. 108, Sec. 3. When required, the attorney-general shall give his opinion, in writing, without fee, to the legislature, or either house thereof, upon any question of law, and to the governor, the secretary of state, controller, treasurer, surveyor-general, the trustees or commissioners of state hospital or asylum, and any district attorney, upon any question of law relating to their respective offices.

ART. 109, Sec. 4. The attorney-general shall supervise the district attorneys of the state in all matters pertaining to the duties of their office. He shall, from time to time, in his discretion, require of the district attorneys such a report as to the condition of public business intrusted to their charge, as may be prescribed by law, regulating the duties of district attorneys. He shall keep a docket of all causes to which the state, or any officer of the state in his official capacity, or any county may be a party, which docket shall at all times in business hours be open to the inspection of the public, and shall set forth the county, district, and court, in which said causes shall have been instituted, tried and adjudged, and whether civil or criminal causes; if civil causes, the nature of the demand, the stage of the proceedings, and when prosecuted to judgment, a memorandum of the judgment, of the process, if any issued thereon, and whether satisfied or not, and if not satisfied, the return of the sheriff on said process; and if criminal causes, the nature of the crime, the mode of prosecution, the stage of the proceedings, and when prosecuted to sentence, a memorandum of the sentence, and of the execution thereof, if the same shall have been executed, and if not executed, of the reasons of the delay or prevention of execution.

ART. 110, Sec. 5.The attorney-general shall also, on the fifteenth day of De360 cember, annually, report to the governor the condition of the affairs of his department, and in said report make such suggestions as shall appear to him calculated to improve the laws of the state. These reports shall be accompanied and verified by the reports which he shall have received from the district attorneys of the state, and by a transcript from the docket which he is herein commanded to keep. He shall communicate to the governor, or either house of the legislature, whenever requested, any information concerning his office.

ART. 111, Sec. 6. It shall be the duty of the attorney-general, whenever in his opinion required by the public service, or when directed by the governor, to repair to any district in the state and assist the district attorney in the discharge of his duties.

ART. 112, Sec. 7. The attorney-general shall be elected in the manner prescribed by the constitution and the law regulating elections.

ART. 113, Sec. 8. The attorney-general shall receive such compensation as may be prescribed by law.

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II. DISTRICT ATTORNEY.

Act of April 29, 1851, concerning District Attorneys.-[Took effect first Monday in Oct. 1851. R. A. St. 1850, 112, chaps. 39 and 40.

ART. 114, Sec. 1. There shall be a district attorney in each county of this state, who shall be elected by the electors of the county, at the general election of the present year, and at the general election every two years thereafter, and shall enter upon his duties on the first Monday of October subsequent to his election. ART. 115, Sec. 2 Before entering upon the duties of his office, he shall execute and file with the county clerk, a bond to the state, in the sum of ten thousand dollars, conditioned for the faithful performance of his duties.

ART. 116, Sec. 3. The district attorney in each county shall be the public prosecutor therein.

ART. 117, Sec. 4. He shall attend the district courts held in his county, and the courts of sessions in his county, held for the transaction of criminal business, and conduct on behalf of the people all prosecutions for public offenses.

ART. 118, Sec. 5. If he fails to attend any term of those courts, the court shall designate some other person to perform the duties of district attorney during his absence from the court, who shall receive a reasonable compensation, to be certified by the court, and paid from the county treasury.

ART. 119, Sec. 6. The district attorney, when not in attendance upon the district court, or court of sessions, shall institute proceedings before magistrates, for the arrest of persons charged with, or reasonably suspected of public offenses, when he has information that any such offense has been committed; and for that purpose shall attend upon the magistrates in cases of arrest, when required by them, and shall attend before, and give advice to the grand jury, whenever cases are presented to them for their consideration.

ART. 120, Sec. 7. The district attorney shall draw all indictments when required by the grand jury; shall defend all suits brought against the state or his county; shall prosecute all recognizances forfeited in the district court, or court of sessions; and all actions for the recovery of debts, fines, penalties and forfeitures, accruing to the state, or his county; and he shall also perform such other duties as may be required of him by law.

ART. 121, Sec. 8. When he receives money or property, in his official capacity, he shall deliver a receipt therefor to the person from whom he receives it, and file a duplicate thereof with the county treasurer.

ART. 122, Sec. 9. He shall, on the first Mondays of January, April, July and October, in each year, file, in the office of the county treasurer, an account in writing, verified by oath, of all moneys received by him, in his official capacity, during the preceding three months, and shall, at the same time, pay it over to the county treasurer.

ART. 123, Sec. 10. If he refuse, or neglect to account for and pay over money so received by him, as required by the last section, the county treasurer shall bring an action against him for the recovery thereof, in the name of the county, and may recover in such action, in addition to the amount so received, fifty per cent. damages and interest. For such refusal or neglect he shall also be deemed guilty of a misdemeanor in office.

ART. 124, Sec. 11. The district attorney shall, without fee, give his opinion to any assessor or collector, or any county auditor or treasurer, in any matter relating to the duties of their respective offices.

ART. 125, Sec. 12. The district attorney shall not act as counsel in a civil action, or in a special proceeding of a civil nature, for a private party, against whom a criminal action for a felony is pending.

ART. 126, Sec. 13. He shall keep a register of his official business, in which shall be entered a note of every action, whether criminal or civil, prosecuted by him officially, and of the proceedings therein, which shall, upon the expiration of his term of office, be turned over to his successor.

ART. 127, Sec. 14. The district attorney may be indicted for a misdemeanor in office, or neglect of duty, and be punished by removal, or by fine, not exceeding two thousand dollars, for the use of the county in which he is convicted, or by both such fine and removal.

ART. 128, Sec. 15. The district attorney shall receive such salary as may be fixed by law, in addition to the fees allowed for the prosecution of offenses and of forfeited recognizances. He shall also be entitled to receive, for all amounts collected by him for the state or county by action, ten per cent. on the amount collected, and for all criminal actions successfully prosecuted by him, such fees as may be allowed by law, to be paid by the defendant. (1)

Act of May 12, 1853, concerning Auditing Accounts by the Court of Sessions and Board of Supervisors.

ART. 129, Sec. 1. The district attorney, when not in attendance upon the district court or court of sessions, as criminal prosecutor, shall attend the sittings of the board of supervisors or court of sessions (as the case may be), when engaged in auditing accounts and claims brought against the county, and in all cases oppose such accounts or claims as he may deem unjust, illegal or extortionate.

ART. 130, Sec. 2. No district attorney, except for his own services, shall be allowed to present any claim, account or demand for allowance against his own county, or in any way to advocate the relief asked on the claim or demand made by another.

ART. 131, Sec. 3. Any person, being a citizen and tax-payer of the county in which he resides, may appear before the board of supervisors or court of sessions (as the case may be), and oppose the allowance of any claim or demand made against the county; provided, however, that the provisions of this section shall not apply to cases where fees are prescribed by statute

III. ATTORNEY AT LAW.

(See 1886)

Act of Feb. 19, 1851, concerning Attorneys and Counselors at Law.

ART. 132, Sec. 1. Any white male citizen, of the age of twenty-one years, of MSee St good moral character, and who possesses the necessary qualifications of learning Po and ability, shall be entitled to admission as attorney and counselor in all the courts of this state.

ART. 133, Sec. 2. Every applicant for admission as attorney and counselor shall "produce satisfactory testimonials of good moral character, and undergo a strict examination, in open court, as to his qualifications, by one of the judges of the supreme court of this state.

ART. 134, Sec. 3. If, upon examination, he be found duly qualified, the court shall admit him as attorney and counselor in all the courts of this state, and shall

(1) See Salary.

See

direct an order to be entered to that effect upon its records, and that a certificate of such record be given to him by the clerk of the court, which certificate shall be his license.

ART. 135, Sec. 4. The district and county courts of this state are authorized to admit, as attorney and counselor in their respective courts, any white male citizen of the age of twenty-one years, and of good moral character, who possesses the requisite qualifications, on similar testimonials and like examinations as are required by the preceding sections for admission by the supreme court, and may direct their clerks to give a certificate of such admission, which certificate shall be his license to practice in such courts.

ART. 136, Sec. 5. Every person, on his admission, shall take an oath or affirmation to support the constitution of the United States and of the state, and to discharge the duties of attorney and counselor to the best of his knowledge and ability. A certificate of such oath or affirmation shall be indorsed on the license. ART. 137, Sec. 6. The examination may be dispensed with, in the case of a person who has been admitted attorney and counselor in the highest courts of a sister state; his affidavit of such admission, or his license showing the same, shall be deemed sufficient to entitle him to admission.

ART. 138, Sec. 7. Each clerk shall keep a roll of attorneys and counselors of the court of which he is clerk, which shall be a record of the court.

ART. 139, Sec. 8. If any person shall practice law in any court, except a justice's or recorder's court, without having received a license as attorney and counselor, he shall be deemed guilty of a contempt of court, and punished as in other cases of contempt.

ART. 140, Sec. 9. An attorney and counselor shall have authority: 1. To bind his client in any of the steps of an action or proceeding, by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise. 2. To receive money claimed by his client in an action or proceeding, during the pendency thereof, or within one year after judgment, and upon the payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment.

ART. 141, Sec. 10. The attorney in an action, or special proceeding, may be changed at any time before judgment or final determination, as follows: 1. Upon his own consent, filed with the clerk, or entered upon the minutes. 2. Upon the order of the court, or judge thereof, on the application of the client.

ART. 142, Sec. 11. When an attorney is changed, as provided in the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, shall be given to the adverse party; until then he shall be bound to recognize the former attorney.

ART. 143, Sec. 12. When an attorney dies, or is removed, or suspended, or ceases to act as such, a party to an action for whom he was acting as attorney shall, before any further proceedings be had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person. ART. 144, Sec. 13. An attorney and counselor may be removed or suspended by the supreme court, and by no other court in the state, for either of the followng causes, arising after his admission to practice: 1. Upon his being convicted of felony or misdemeanor, involving moral turpitude, in either of which cases the record of his conviction shall be conclusive evidence. 2. For 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.

ART. 145, Sec. 14. In case of the conviction of an attorney or counselor of a felony, or misdemeanor involving moral turpitude, the clerk of the court in which the conviction was had, shall, within thirty days thereafter, transmit to the supreme court a certified copy of the record of conviction.

ART. 146, Sec. 15. The proceedings to remove or suspend an attorney and

counselor, under the first subdivision of section thirteenth, shall be taken by the court on the receipt of the certified copy of the record of conviction; the proceedings under the second subdivision of section thirteenth may be taken by the court for matters within its knowledge, or may be taken upon the information of another.

ART. 147, Sec. 16. If the proceedings be upon the information of another, the accusation shall be in writing, and shall be presented to the court.

ART. 148, Sec. 17. The accusation shall state the matters charged, and shall be verified by the oath of the person making it, or some other person, to the effect that the charges therein contained are true.

ART. 149, Sec. 18. After receiving the accusation, the court shall, if in its opinion the case require it, make an order requiring the accused to appear and answer the accusation, at a specified time, in the same or subsequent term, and shall cause a copy of the order and of the accusation to be served upon the accused, within a prescribed time before the day appointed in the order.

ART. 150, Sec. 19. The accused must appear at the time appointed in the order, and answer the accusation, unless for sufficient cause the court assign another day for that purpose; if he do not appear, the court may proceed and determine the accusation in his absence.

ART. 151, Sec. 20. The accused may answer to the accusation, either by objecting to the sufficiency, or by denying its truth.

ART. 152, Sec. 21. If he object to the sufficiency of the accusation, the objection shall be in writing, but need not be in any specific form; it being sufficient if it present intelligibly the grounds of the objection. If he deny the truth of the accusation, the denial may be oral, and without oath, and shall be entered upon the minutes.

ART. 153, Sec. 22. If an objection to the sufficiency of the accusation be not sustained, the accused shall answer forthwith.

ART. 154, Sec. 23. If the accused plead guilty, or refuse to answer the accusation, the court shall proceed to judgment of removal or suspension. If he deny the matters charged, the court shall immediately, or at such time as it may appoint, proceed to try the accusation.

ART. 155, Sec. 24. The court may in its discretion order a reference to a committee to take depositions in the matter, and to report to the court before proceeding to try the accusation.

ART. 156, Sec. 25. Upon conviction, in cases arising under the first subdivision of section thirteenth, the judgment of the court shall be, that the name of the party be stricken from the roll of attorneys and counselors of the court, and he be precluded from practicing as such attorney or counselor in all the courts of this state; and upon conviction in cases under the second subdivision of section thirteenth, the judgment of the court may be according to the gravity of the offense charged-deprivation of the right to practice as attorneys or counselors in the courts of this state, permanently or for a limited period.

See Office, Crimes and Punishments, Civil Practice, Criminal Practice.

JUDICIAL DECISIONS.

1. WHERE a person has been admitted as an attorney of the supreme court, the district court has no authority to remove him from office. People v. Turner, 1 Cal. 190.

2. An attorney has no lien upon a judgment recovered by him in favor of his client, for a quantum meruit compensation for his services. Ex parte Kyle, 1 Cal. 331.

3. An attorney, by virtue of his retainer and general control over a case in court, has the power to bind his client by consenting to an order of the court. Hart v. Spalding, 1 Cal. 213.

4. The agreement of an attorney, to conclude the client, must be in writing and filed with the clerk or entered on the minutes. Smith v. Pollock, 2 Cal. 92.

5. An agreement made by an attorney with his client, that he is to receive, as compensation for his services, a portion of the judgment, gives no lien on the judgment. Mansfield v. Dorland, 2 Cal. 507.

6. In declaring against an attorney for negligence, it is only necessary to aver generally that he was retained. But if it be alleged that he was retained in consideration of certain reasonable fees and rewards to be paid him, and no future time is stated as agreed upon for the payment of such fee, the declaration must aver payment, and the omission of this is error. Cavillaud v. Yale, 3 Cal. 108.