$6. It is a general rule, that no one can make an attorney, who has not a capacity to act and bind him or herself. Hence, minors and married women cannot make attornies; and where the husband and wife are sued, he makes an attorney for her; but all persons of discretion may be attornies, as infants having discretion and understanding &c.

7. An English statute empowered all persons to appear by attorney, who had ability to make him.

er's case.

8. It is error to appear by attorney, where, by law, it 1 Co. 116 to cannot be done; and it is error, if an infant appear by attor- 125, Belchney, nor can a retraxit be by attorney; but an attorney may Salk. 89. remit damages.

88.

evidence of

The attorney's consent in court binds his client; if he takes Salk. 86, 87, upon himself to appear, the court looks no further; but proceeds as if he had sufficient power, and leaves the party to his Must be some action against his attorney. He is not compellable to appear, being emunless he takes his fees or backs the warrant, or takes a power. ployed in a And if he appears without warrant, our courts receive him as suit. an attorney of the party, if he, the attorney, declares he has 142. been spoken to by his client, or by one for him. The attorney who undertakes to appear must do it in a proper manner, and his entry as an attorney may be so amended as to stand as the Stra. 144: entry of a guardian.

9 Johns. R.

Hollester.

9. An attorney must appear if he undertakes to do it, Stra. 693, though at the request of a third person only, and without the Lorymer v. knowledge of the party interested, where his appearance is necessary to support the proceedings.

Bailie.-
Chitty 29.

10. If an executor give me a power of attorney to act 6 T. R. 590, for him as executor, this does not authorize me to accept a bill Gardner v. of exchange to charge him in his own right, though for debts due from his testator. The power of attorney was, in this case, cautiously drawn, to enable the attorney to charge the executrix as such only, whereas he accepted the bill to charge Reeves D. R. her in her own right. An attorney can never substitute but 353, 354. by express power.

Russell v.

312.-Dr. &

11. Where an attorney is liable for defamation, see De- 2 Wils. 325, famation. Where he may be a witness, see Witness &c. Palmer.If an attorney do not do his duty in a cause, as if he do not 4 Burr. 2061. charge the deft. in execution as he ought to do, and an action-1 Saund. be brought against such attorney by law, the jury may give such stud. 158, damages as they may think reasonable under all the circumstances of the case, without regarding the amount of the original debt lost by his negligence. Where liable or not as to advice.

3 Wils. 368,

Barker v.

§ 12. If an attorney at the suit of his client, sues out an illegal writ against a deft. and causes him thereupon to be Braham imprisoned, trespass vi et armis for false imprisonment lies as

CH. 15.
Art. 4.

Salk. 89,

Burr v. Atwood-Salk. 86.-1 Bac. Abr. 188.

well against the attorney as the client; as where the attorney caused the body of an administratrix to be taken in execution, without suggesting she had been guilty of a devastavit.

13. If an attorney have a warrant to appear for the plt. in the original action, it is no warrant to appear in the scire facias against the bail. This is a different cause; his power continues to judgment and suing out execution within the year, and longer if the execution be continued, but he cannot sue the judgment.

14. By Massachusetts Colony Laws, no magistrate acting in the cause as judge, could be advised with as counsel by either party.

15. An attorney's power, though made irrevocable, yet it may be revoked, where it vests a mere authority, but otherwise, where it vests an interest, as to confess a judgment to A, where this judgment is a part of his security for a debt. A letter of attorney ceases on the death of him who gives it.

§ 16. If an attorney follow a cause, to be paid in gross when a recovery shall be had, it is champerty.

§ 17. It is understood that the act of 3 Jam. I, ch. 7, as to attornies presenting their bills in certain forms to their clients before they can sue, has not been adopted in Massachusetts, if it has been in any of the United States. And in England it has been held, that it extends only to suits in the courts of Westminster hall. Nor have the acts of George II. on this subject been adopted here; hence, the many cases in the English books, arising out of these acts, do not apply here.

18. An attorney may be empowered, not only by express, but also by implied authority inferred from prior conduct of the principal: as if an agent formerly in his principal's absence, usually transacted his business and accepted his bills, and the principal returned and approved of this, he is bound in a similar situation on a second absence from home. So if a wife forbid A passing through her husband's close, and he sues A for doing this, the law implies from this, she had power to forbid &c., as he recognises her act by bringing the action. And one is bound by every act of his general agent or attorney, although he exceeds his authority. But as his power is not coupled with an interest, he cannot delegate it, unless expressly impowered so to do, and he must mention he acts as agent &c. except he be a government agent. If such a one contract for its use, he is not personally liable, though the contract be under his own hand and seal; but it is conceived there must be reason to presume the contractee knew he was acting as public agent; or good reason to believe he was so acting. In the body of the indenture Dexter was described as secretary of war, but he signed his proper name only.

19. To bind the principal by deed, the attorney's power Cн. 15. must be by deed; but his deed is good against himself. Nor Art. 4. tan one partner bind another by deed, unless he be present

7 T. R. 207.

and assenting, even though the deed respect their partnership Harrison v. concerns. Hence, 66 an attorney who is only authorized by Jackson, parol," cannot make "a feoffment and livery," or a lease for Watson's years. No set form of words are necessary in his signing. 2 Part. 160, 162 East 142.

See 3 Bac.
Abr. 408.

on

§ 20. This was covenant on a charter-party. The deed Watson was executed by G. Dwyer, by order and for account of Rush Part. 162, & Tilson, and it was held to be void, because Dwyer had Rush, Ch. 20, only a verbal authority to execute the charter-party. When a. 20. an attorney in an action may cease to be one. 465, 469

13 Mass. R.

Watson on Partnership 162.

1 Mass. R.

433, Hart v.

8

§ 21. It seems to be a settled principle, that to make a deed by attorney, he must be appointed by deed. § 22. If one endorsed his name A. B. on an execution, as attorney to the creditor, it is no evidence he was attorney. Waterhouse. $23. This was case against the deft. as an attorney, stating Mass. R. the plt. put a certain note into his hands to collect &c., that he 51, Gilbert v. retained the deft. &c., directed him &c., that hé so carelessly Also 15 Mass. and negligently conducted the business, that the plt. lost the R. 316. note &c. Judgment for the plt. And the principle settled was, that whenever an attorney disobeys the instructions of his client, and a loss ensues, the attorney is liable for it.

Williams.

R. 250.

24. Several matters &c. Supreme Court of the United 3 Dallas 306. States does not allow counsel's fees, in estimating damages on 2 Caines' which a decree is founded. If a counsel stipulate in a cause, 2 Caines' R. it is as effectual as if done by the attorney on record. One 261, 386,387. who has practised three years as an attorney may be admitted a counsellor and in admitting one, alienism is no objection, he only takes an oath of office. A counsellor is entitled to privileges, (in New York) and hence must be proceeded against by bill. In Massachusetts, counsellors only can argue issues in law and in fact, and law questions arising on writs of error, certiorari, and mandamus on special verdicts, on motions for new trials, and in arrest of judgment. Counsellors may practise as attornies.

6 Mass. R. 382.

An attorney's practice of having different offices in different 4 Johns. R. places is improper.

191.

§ 25. In England, an action cannot be brought on an attor- Lofft 341.ney's bill, until a month after it is delivered to his client. How 1 Dougl. 198. signed, delivered, &c. 5 D. & E. 694; 2 Bos. & P. 343; 1 H. Bl. 291; 6 D. & E. 645, 646. And if so delivered a proper time before sued, and not referred by the client for taxation, he cannot on the trial dispute the reasonableness of 237. the charges. See the laws of Louisiana on this subject, en

2 Bos. & P.

CH. 15, acted on the principles on the French law. Civil Code of Art. 4. Louisiana 421 to 426, book 3, title 13, making several good distinctions.

11 Johns R. 119, Waring v. Yates.1 D. & E.

116.-7 Do. 474-8 Do.

679.

2 Saund. 291,

n. 1.

10 Johns. R.

Loomis.

26. Attornies in New York may be sued by bill &c. Assumpsit. The bill against the deft., an attorney of the Supreme Court, was filed in it in the vacation as of the first Monday in August 1812, in which the promise was said to have been made September 1, 1812; and held bad: by this as by many other cases, it appears an attorney of the Supreme Court is originally sued in it, and a declaration filed as of the preceding term on a promise made after it, is bad on demurrer, hence the day of the filing should be mentioned. Tidd's Prac. 767; Ch. Pl. 259, 263, 264, 265. See Cheetham v. Lowes. Then it may be proved as 28, below.

$27, Action of trespass, assault, &c. against an attorney 463, Gibbs v. of the Common Pleas &c.; he plead he was suable only in that court, except as to the rights of the people. Held, his privilege from arrest by process from the Supreme Court was confined to his necessary attendance on that court and Common Pleas. So attornies of all inferior courts, they have no perpetual exclusive privilege as against the jurisdiction of the Supreme Court.

10 Johns. R.

Wood.

28. Bills against attornies may be filed in the vaca218, Sabin v. tion. And the suit is deemed to commence only from the time of filing the bill; and though filed generally, of the term the plt. at the trial may shew when the cause of action arose, and if after, bad on the rule 26 above relied on, 2 Stran. 1271; 3 Burr. 1241; 1 Caines' R. 69; 5 D. & E. 325, which to promote justice, allow a fiction to be contradicted &c. In fact, New York and several States have allowed to their attornies the English privileges.

10 Johns. R.

logg v. Gil

bert.

$29. Attorney General's power does not enable him to dis220, 222, Kel charge a debtor. As where the deft. was in custody on a ca. sa., the plt's. attorney on record, without satisfaction of the judgment or the plt's. consent, desired the sheriff to permit the deft. to go at large to obtain means to pay &c., and the sheriff knowingly allowed the deft. to go at large. In debt against the sheriff for an escape, held the plt's. attorney, from his general character had no authority to order the deft's. discharge, without the plt's. consent, or a previous satisfaction of the debt, and the sheriff was liable for an escape; same, 8 Johns. R. 361, 367; till judgment obtained the attorney has large and liberal discretion, but he cannot enter a retraxit, as it is a perpetual bar, and equivalent to a release, said the Chief Justice. Baker's case, 8 Co. 58. "And the admittance of the court," said the court in that case, "cannot prejudice the plt, in so high a degree, but in all dilatory matters the admis

sion of the court may turn the plt. or demandant to delay, but shall never bar the plt. or demandant." See 2 Roll. R. 62; 1 Salk. 89; 6 Mod. 82. The act of New York (Sess. 34, c. 196) says, such discharge must be done by the party or his attorney "thereunto lawfully authorized."

CH. 16.

Art. 1.

$30. Power of attorney to make a deed of land presumed 10 Johns. R. after forty-two years quiet possession &c. As in ejectment the 475, 478, Doe v. Campbell. plt. sued in 1809, and shewed title by a release made in 1767, in partition, to ths of the land sued for, and proved by witnesses, that all the lots in the patent so divided, they were acquainted with, were held according to that partition; and no outstanding title appearing in the two remaining patentees, the court held; first, it might legally be inferred the lessors had a perfect title to the whole. Second, where a deed, dated May 14, 1767, recited that several of the grantors conveyed by K. See Ch. 94, Y. their attorney &c., in 1809, after forty-two years, and an a. 9, s. 7, same princiacquiescence in the titles under that deed, deemed said power ple. was valid, though not produced, or any proof it was executed. Third, possession of a lot of land, commenced adversely twenty-five years before the suit, by clearing four or five acres, Ch. 104, a. 4, not shewing what part, and no regular tracing title or privity, s. 5, like prinand continued possession to the deft., does not prove adverse ciple. possession to bar the plt.

31. He is not bound to proceed, unless his fees are paid 2 Johns. R. or secured, nor unless his client pays his costs; he is not bound 296, Castro v. to spend money for his clients &c. without being secured.

Bennet.

32. Where an attorney undertakes to appear for a party 5 Johns. R. in a cause, the court will look no further as to his authority.

34. See Salk. 86.

CHAPTER XVI.

ACTION OF ASSUMPSIT. SALES AT AUCTION.

liams v. Wil

ART. 1. 1. In sales at auction there are some things 203-1 H. Imp. M. P. peculiarly to be attended to. In these sales an auctioneer Bl. 88, Wilmay sell the goods of another, and sue for, and treat them as lington. See his own. Therefore, if an auctioneer at my house sells my Ch. 11, a. 4, goods, yet he may have an action against the buyer for goods and 6.sold and delivered, though the goods are known to be mine, Burr. 1921. Cowp. 255.and not the auctioneer's. And Lord Loughborough and other 1 T. R. 619, judges have proceeded on the ground, that an auctioneer "has 622.-2 W. a possession coupled with an interest in goods, which he is employed to sell, not a bare custody like a servant or a shopman, whether the sale be on the premises of the owner or in a pub

Bl. 996.-Bul

N. P. 280.

2 Burr. 1005.

Bull. N. P. 130.-1 T. R.