the court. To compel a defendant to answer a suit because an attorney believes he is authorized, is going very far.

An attorney who receives a note from his client to collect, is warranted by his general retainer, to bring a second suit upon the note, after being nonsuited in the first for want of due proof of its execution.' The attorney of record for the plaintiff in a suit where bail was taken, has power, of course, to sue out a scire facias, against the bail, if non est inventus be returned on the execution. And he may bring a writ of error, to reverse an erroneous judgment against his principal.3 But it seems he cannot sue out a scire facias on the judgment, for that requires a new retainer. Where a right of action has been assigned for a valuable consideration, the assignment includes a power to prosecute the suit in the name of the assignor, although no express power be given; and the suit may be prosecuted, without the consent, or even against the express dissent of the nominal plaintiff. Thus if a nominal plaintiff should personally appear in court and request that the suit might be dismissed, the court will not grant the request, if proof be given of an assignment, whether written or verbal, to the person by whom or in whose behalf the suit is prosecuted. But if the payee of a negotiable note indorse it, the indorsee cannot from that circumstance, without the special authority of the indorser, maintain a suit in his name. It is not neces

1

4

1 Scott v. Elmendorf, 12 Johns. Rep. 315.

2 Dearborn v. Dearborn, 15 Mass. Rep. 316.

3 Grosvenor v. Danforth, 16 Mass. Rep. 74.

'Salk 86. Say. 218. Boylston v. Greene, 8 Mass. Rep. 465. Jones

v. Witter, 13 Mass. Rep. 304.

Rep. 316.

Eastman et al. v. Wright et al. 6 Pick.

sary for the purpose of giving the transfer effect, and no authority therefore can be implied to use the indorser's name. In cases of trusts, the cestui que trust has a similar right to use the name of the trustee. And

the principle embraces all cases where one person, to enforce his equitable rights, is obliged to sue in the name of another who has no interest in the suit.2 So if one of several partners, or other joint owners of a chose in action, assign his interest to the other partners or owners, the assignment will be recognized and enforced by permitting the others to use the names of all.3 The plaintiffs, however, must be mere trustees. The rule does not extend to cases where the plaintiffs maintain the action in their own right, and have an interest in the judgment. If one partner or joint contractor, unjustly refuses to suffer his name to be used in a joint action, the others cannot proceed in it, but must take their remedy against the party refusing, by a special action on the case. When one party has thus a right to use the name of another, he has, it seems, the same right to use the name of his executor or administrator, if he be dead."

When the owner of land is disseized and makes a sale and conveyance of the land to a person who is not in possession, the purchaser cannot maintain a suit, to

1

1 Mosher, Exor. v. Allen, 16 Mass. Rep. 451.

2

Payne v. Rogers, Dougl. Rep. 407. Locke v. Franklin, 7 Taunt. Rep. 9.

Mountstephen et al. v. Brooke et al. 1 Chitty Rep. 390. Arton et al. v. Booth, 4 Moore. Rep. 192.

* Eastman et al. v. Wright et al. 6 Pick. Rep. 316. Wilson v. Mower, 5 Mass. Rep. 407. See also Loring et al. v. Brackett, 3 Pick. Rep. 403.

Alsop v. Caines, 10 Johns. Rep. 396. Raymond v. Johnson, 11 Johns. Rep. 488.

recover it in the name of the grantor, without his consent; but if he do consent, or if, the suit being commenced without his knowledge, he afterwards assent to it, it will be sufficient. Any person may bring an action in the name of an infant, as his prochein amy.2

By Stat. 1786. ch. 58. s. 6. in any stage of the proceedings upon process de homine replegiando, any person shall be permitted to appear for the plaintiff, who will stipulate as the court shall direct for the payment of all costs and damages, although he can produce no special power for that purpose.

By Stat. 1794. ch. 65. s. 2. any person cited as trustee, having any goods, effects, or credits of the principal in his hands, may appear in his behalf, and in his name plead, pursue, and defend to final judgment.

SECT. II. DISABILITIES TO APPEAR AS ATTORNIES.

By Stat. 1815. ch. 49. s. 1. no person shall engage or be employed as counsel or attorney, before any court, in any action which he shall have determined as judge or justice of the peace.

By Stat. 1817. ch. 190. s. 4. no judge of Probate shall be allowed or admitted to have a voice in judging and determining, nor be permitted to be of counsel or to act as an attorney, whether in or out of court, in any civil action or other process or matter whatsoever, which may depend on, or have relation in any way to, any sentence or decree, made or passed by him in his office. Nor shall he be of counsel or attorney in

1 Cleverly v. Whitney, 7 Pick. Rep. 36.

2 See Miles v. Boyden, 3 Pick. Rep. 213. Smith v. Floyd, 1 Pick. Rep.

any civil action, for or against any executor, administrator, or guardian, as such, within the county in which said judge shall preside. No register of probate shall be of counsel, or in any way, directly or indirectly, act as an attorney in any matters or things whatsoever that are or may be pending in the Court of Probate of which he is register, or in any appeals therefrom.

By Stat. 1807. ch. 18. s. 2. no attorney general, solicitor general, or county attorney, shall receive any fee or reward, from or in behalf of any prosecutor for services in any prosecution, or during the pendency of such prosecution; or be concerned as counsel or attorney for either party in any civil action depending

on the same facts.

By Stat. 1783. ch. 44. s. 3. no sheriff or deputy sheriff shall be suffered to appear in any court or before any justice of the peace, as attorney to, or in behalf of, assisting or advising any party in a suit, nor shall any sheriff or his deputy be allowed to draw, make, or fill up any plaint, declaration, writ, or process, or to draw or make any plea for any other person; but all such acts done by either of them shall be void.' By Stat. 1822. ch. 20. s. 1. similar provisions are made with respect to constables.

No record is necessary or usual, where an infant is plaintiff, of the admission of his prochein amy to sue.2 The respective courts in which suits are commenced, must assign a proper guardian to the infant; and therefore if an infant is sued, the plaintiff must move to have a proper guardian assigned him. This is true of all courts and if the plaintiff omit to procure the appointment of a guardian ad litem, no judgment which

1 Clarke et al. v. Lyman, 10 Pick. Rep. 45.

2 Miles v. Boyden, 3 Pick. Rep. 213. 3 Bac. Abr. Infancy, &c. K. 2.

he can recover will avail him, if the defendant should afterwards choose to bring a writ of error.

It is scarcely necessary to remark that no person can appear as an attorney for both parties, though by their consent. Such a proceeding would be deemed highly reprehensible.'

SECT. III. AUTHORITY, AGREEMENTS, ADMISSIONS, AND GENERAL POWERS OF ATTORNIES.

2

The mere appearance of an attorney for the defendant is always deemed sufficient for the opposite party, and for the court, who will look no further, and will proceed as if he had sufficient authority, and leave any party who may be injured to his action, unless there appears to be fraud or collusion in the case. The public office which he bears, the oath under which he acts, and it may be added, the experience of the general integrity and fidelity of the profession, have operated to establish a usage, and make that usage law, that except in extreme cases, the appearance of an attorney for a party, although in fact without authority, shall bind him. The case is strongly analogous to that of sheriffs and other returning officers. Their returns are taken to be true and not permitted to be contradicted, and if false, the remedy is by an action against them. Chief Justice Marshall says, in Osborn et als. v. Bank of United States, "the practice

1 Bac. Abr. Attornies, C. 7 Mod. Rep. 47.

3

2 Jackson d. Smith v. Stewart, 6 Johns. Rep. 34. 1 Salk 86. Osborn et als. v. Bank of U. S. 9 Wheat. Rep. 738. Denton v. Noyes, 6 Johns. Rep. 296.

39 Wheat. Rep. 738.