has existed we believe since the first establishment of our courts, and no departure from it has been made in the courts of any state or of the Union." Kent, Ch. J. says,' in the case of Denton v. Noyes, "by licensing attornies, the courts recommend them to the public confidence; and if the opposite attorney, in the business of a suit, must always, at his peril, look beyond the attorney to his authority, it would be productive of great public inconvenience ;" and that "the mere fact of his appearance is always deemed enough for the opposite party, and for the court. If his client's denial of authority is to vacate all the proceedings, the consequences would be mischievous. The imposition might be intolerable."

The principle of these cases has been recognized and adopted by the Supreme Court of this state.2

The rule that the authority of an attorney shall be presumed, and his acts be binding on the person for whom he appears, though he was never authorized, has not been applied to acts and transactions out of court.3

All agreements made by an attorney with the opposite party, and entered on the record, are binding on his client. So if made in writing and filed in the case. As to agreements not in writing, there may be doubts how far the courts will enforce them, or whether the performance must not be left to the honor of the attorney. In case of the death or change of the attorney who made them, his successor and the client would be

16 Johns. Rep. 302.

2 Smith v. Bowditch, 7 Pick. Rep. 137.

3 See Hart v. Waterhouse, 1 Mass. Rep. 433. Herring et al. v. Polley, 8 Mass. Rep. 113.

without means of knowing them. If clearly proved, care would be taken, that the other party should not suffer, and perhaps performance would be compelled; but there is so much danger of mistake and disagreement, and attornies so frequently differ with respect to them, that it should be adopted as an invariable rule, to put in writing all important agreements, and it would be a high degree of negligence to omit it.

In the case of the Union Bank of Georgetown, v. Geary,' the bank having commenced suits against the maker and indorser of a promissory note, the indorser consented to be defaulted on the agreement of the attorney of the bank, that the bank should immediately issue execution against the maker, and levy it on his property. The agreement was verbal and was made without the knowledge of the bank, or any authority to the attorney except that of being employed to bring suits on the note. It was held by the Supreme Court of the United States to be within the authority of the attorney, and binding on the bank, and they having refused to execute it, in consequence of which the maker. was permitted to remove his property, and afterwards became insolvent, an injunction was granted forbidding them to enforce the judgment against the indorser.

2

1

Admissions made by attornies with a view to their being used as evidence may be so used; but casual admissions, in the course of conversation, or not made for that purpose, are not evidence against the client.

An attorney has power under his general authority, to do every thing that is necessary to the regular and proper conducting of the suit in which he acts; - he

'5 Peter's Rep. 99. Vide Griswold v. Lawrence, 1 Johns Rep. 507. 22 Stark Ev. 136.

may become nonsuit or confess judgment upon such terms as he thinks proper, subject however to the interference of the court in case of collusion or fraud.1 Anattorney of record has power to refer the suits, for he is authorized to prosecute or defend, and this is one of the legal modes of prosecuting and defending. But he has not power to compromise the suit. He may appeal from a judgment of the Court of Common Pleas or a justice of the peace, and enter into the recognizance to prosecute the appeal in his client's name, and may himself be a surety in the recognizance.s

2

The authority of an attorney continues until judgment, and for a year and a day after, to sue out execution, and for a longer time if he continues the execution alive and in force. After judgment has been recovered, the attorney of record has authority to receive the amount, either upon the execution or without it, and to discharge the judgment and execution. But he has no authority to discharge the debt upon receiving a less sum than the amount recovered, nor upon receiving collateral security to an amount larger than the debt.5 Nor can he discharge the debtor from imprisonment without satisfaction. And if the gaoler permit him to depart on such an order, he will be liable for an escape."

6

The authority of the attorney after judgment will cease, if the client himself assumes the management

1

Crary v. Turner, 6 Johns. Rep. 51.

2 Buckland v. Conway, 16 Mass. Rep. 396. Holker et al. v. Parker, 7

Cranch Rep. 436. Bac. Abr. Attorney, D.

" 6

3 Adams et al. v. Robinson et al. and trustees, 1 Pick. Rep. 461.

* Bac. Abr. Attorney, D. 5 Peters' Rep. 99.

Parker v. Downing, 13 Mass. Rep. 465.

Langdon et al. v. Potter et al. 13 Mass. Rep. 319. Lewis v. Gamage et al. 1 Pick.Rep.347.

7 Jackson d. McCrea v. Bartlett. 8 Johns. Rep. 361. Kellogg v. Gilbert, 10 Johns. Rep. 220.

of the debt; as if he take the execution into his own hands, paying the attorney his costs; or in any way, revoke the power, and satisfy the lien.1

SECT. IV. DUTIES AND LIABILITIES OF ATTORNIES.

2

Duties. The principal duties of an attorney are care, skill, and integrity. If he be not deficient in these requisites, he is not responsible for any error or mistake, arising in the exercise of his profession. But for a deficiency in skill or care, by which a loss arises. to his client, an attorney is liable. So if he disobey the lawful instructions of his client, and a loss ensue, he is responsible for it.*

And the duty of an attorney to his client is not confined merely to the original suit in which he is at first retained, but may extend to subsequent proceedings. Thus, if bail have been taken in an action, it is the duty of the attorney who has been employed therein, though not specially instructed upon the subject, seasonably to sue the bail; and if, by his neglecting to do it, his client loses the benefit of the judgment recovered, he is liable to pay its amount.5 So it is the duty of an attorney, who has been retained in an action, in which an erroneous judgment has been rendered against his client, to institute process for the reversal of such

1 Parker v. Downing, 13 Mass. Rep. 465.

21 Tidd's Pract. 255. Pitt v. Yalden, 4 Burr. Rep. 2060.

3 Russell v. Palmer, 2 Wils. Rep. 325. Swannell v. Ellis, et al. 1 Bing. Rep. 347.

Gilbert v. Williams, 8 Mass. Rep. 51.

"Dearborn v. Dearborn, 15 Mass. Rep. 316; but vide Burr v. Atwood, 1 Salk, Rep. 89.

judgment, although he have received no special instructions from his client to do so.1

An attorney is not bound to produce any paper entrusted to him by his client.2

It was formerly supposed that attornies were compellable to act. But it is now holden, that they cannot be compelled to appear, until they have received a retainer, which, however, they may refuse. But having appeared, they may be compelled to proceed in the suit.*

Liabilities. An attorney is liable to his client, only for want of care, skill or integrity.

Attornies are liable to the officers of court, for the fees accruing on the performance of their official duties, and an attachment is the appropriate remedy to compel payment of them. They are likewise responsible to sheriffs, coroners, &c. for their fees on the service of such writs and executions as they give them to execute.

5

By the 26th rule of the Court of Common Pleas, when a cause is opened to the jury, and the jury fees remain unpaid, the counsel for the plaintiff or appellant is made responsible for them."

3

If an attorney, after a demand made, or directions given to remit, neglect to pay over money collected by him, in addition to his liability to his client, the

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

* Anon. 8 Mass. Rep. 370. Jackson ex. d. King et al. v. Burtis et al. 14 Johns. Rep. 391.

3 Co. Litt. 295. a.

4 Anon. 1 Salk. 87. Vide 8 Cowen. Rep. 253.

⚫ Caldwell v. Jackson, 7 Cranch. Rep. 276. Adams v. Hopkins, 5 Johns. Rep. 252. Rep. 114.

7 Appendix B.

$5 Cowen. Rep. 376. 6 Cowen. Rep. 596.

Anon. 2 Gall. Rep. 101. Ousterhout v. Day, 9 Johns.