CH. 15. March 13, 1795; conditioned to pay £900 on or before December 25, 1786; assigned to Walker & Co. May 10, 1786; and by them to Barrett & Co. March 10, 1787. May, 1786, chancery process issued and was served on the obligor and obligee at the suit of his creditor. September, 1787, the obligor had notice the bond was assigned to Walker & Co. March, 1788, an attachment issued, to compel him, Tazewell, to answer; the same month Walker & Co. assigned to Barrett & Co. May 21, 1788, the court made an order to restrain Tazewell from disposing of any debts or effects of Theo. Bland, and Barrett & Co. made defts. to the suit, who filed their answer, and August, 1788, withdrew it, and the bill dismissed as to them. In September, 1792, Tazewell filed his answer, five years and a half after the chancery process issued &c., during which time he withheld the debt from Barrett & Co., and refused to pay interest during this time, under a pretence the said process confined the debt in his hands. On these facts held, 1. after a bonâ fide assignment of a bond, and notice thereof to the obligor, he cannot be restrained by a chancery attachment, at the suit of the obligee's creditor, from paying the debt to the assignee, though the subpœna with the clerk's usual endorsement, was served on him before he received such notice; and afterwards (but before he answered the bill) the court made an order as above, restraining him from paying the debt. 2. That the obligor was not entitled, in a suit against him by said assignees, to any deduction of interest, between the day when the bond became payable, and the time when the restraining order was set aside. Judge Fleming added, it was by the obligor's fault, the process was so long pending. CHAPTER XV. ATTORNIES. ART. 1. Assumpsit for their fees. § 1. Whenever attor nies are employed by any one, in court, or out of court, they may have an action of assumpsit for a compensation for their services, or for their services and disbursements, done and made by request, for the price, where that is agreed, and where not, for a quantum meruit; or he may have debt in many ca ses. §2. Assumpsit by an executrix. The plt. declared, that her testator being an attorney of the C. B., the deft. was indebted to CH. 15. Art. 1. bim in divers sums, for costs and expenses, by the testator laid out and expended at the deft's. request, for prosecuting and defending divers suits for the deft., and for his fees in divers terms, and the testator's expenses and sums of money Cro Car. laid out as servant and solicitor of the deft. in divers other 159, Thursby v. Warren. courts in Westminster, at the deft's. request, in prosecuting and 1 Selw. N. P. defending his suits therein, the deft. promised to pay the tes- 146, same tator &c. case. client's mon. In N. York if 3. Judgment for the plt., and error was brought because he unjustly he demanded fees in other courts, where he was not attorney, withhold his which is maintenance and unlawful, but the judgment was afey, the court firmed by all the court. And it was held, that an attorney may affords relief well be a solicitor for his client in other courts, as well as in the in a summary court where he is attorney, and a promise to pay him for his Caines' R. services is lawful and good. way, 3 4. Trevilian, an attorney, sued Sands for £10, for that to practise Sands retained him to prosecute a suit, as an attorney to one one year, he Worlich, and promised to pay the plt. his fees; and the court loses his priheld that debt did not lie against Sands, but assumpsit only, but being sued, vilege as to debt might have lain against Worlich, who assented to the ser- Coleman vice. The same if an agent or solicitor employ him. War- 133, Brooks rant of attorney need not be sealed, 5 Taun. 264, nor wit- Cro. Car. nessed. v. Patterson. 193, 194, Sands v. Treror-1 Com. D. 518Skin. 217, 218. vilian, in er § 5. A and B, attorneys to C, by deed covenanted under their hands and seals, to convey lands to D, on his paying a certain sum of money. A and B brought covenant in their own names against D, and judgment for the deft., for if the covenant is to be viewed as made with C, the action must be 1 Selw. 146. in his name. But if to be viewed as made by, and with the 6 Johns. R. attorneys, in their own names as attorneys, then the contract gart De is void. See Frontin v. Small; 2 Ld. Raym. 1418; Com. Bussey. D. tit. Attorney, e. 14. 94, 96, Bo § 6. Attorneys and solicitors may have debt or indebitatus 1 Selw. 146. assumpsit for their fees; assumpsit is most usual; and one may have this action for soliciting a cause in a court in which he is not attorney. Cro. Car. 159. 7. And to an attorney's action of assumpsit the deft. may plead the statute of limitations, to wit: that he did not promise within six years before the action brought. Cro. J. 520, Bradford v. Woodhouse. Ld. Raym. 2- Oliver v. Johns. R. Bradt v. Wal § 8. Attorneys liable &c. If A allow his name to be used 8 by B in an action, as lessor, but on condition A be subjected 298, 303, to no costs, and B, his attorney, so use A's name as to subject ton & al. him to costs, A has an action against the attorney to recover all he is obliged to pay.. § 9. Assumpsit for his fees, and held though it may not be 9 Johns. R. necessary to prove the attorney originally employed by the 142, Hotchparty, yet his recognition of him, in some stage of the cause, Roy & al. kiss v. Le CH. 15. 9 Johns. R. is necessary to be shown, to make the party liable for costs. The attorney's acting as such in the cause is not sufficient. 10. If an attorney be sued in an inferior court, in which he is privileged from arrest, the cause cannot be removed into 266, Webb v. the Supreme Court by a habeas corpus cum causâ. Cleveland, attorney. 2 Phil. Ev. 78. 11. It is not a good defence to an attorney's action, to shew negligence in his conducting the business for which he 11 Johns. R. charges, and if a defence it is not in evidence on the general issue. Runian v. Nichols. 547. 6 T. R. 361, per.-1 Com. ART. 2. Where he has a lien for costs, and an assumpsit lies Read v. Dup- thereon. § 1. The pli's. debt and costs are often recovered by the industry, and often at the expense of his attorney, therefore he has a lien on the debt and costs in the hands of the deft. or his attorney, after notice given to the holder of them, by the plt's. attorney, his bill not being paid; therefore if after such notice, the deft's. attorney pay the plt. his debt and costs, though to prevent the deft's. being arrested, yet the deft's. attorney must pay the plt's. attorney his said bill whereof notice was given. It will be observed in that case, that the plt's. attorney had his lien on what never was in his hands or possession. Sel. R. 240; also 1 East 464, Ormerod v. Tate. 5 Mass. R. v. Clark. 2. But in this case referees reported in the plt's. favor, 309, Gatchell and before judgment the parties themselves settled the matter, (or if done after,) the court held that the plt's. attorney had no lien on the cause for his fees, but his only remedy is by action against his client. For before judgment, the plt. might settle the action "against the consent of his attorney," and that "after judgment, if the plt. released the judgment to the deft., the law had provided no remedy for him," but such action. So he has for a general balance a lien on his client's papers in his hands. Maule & Sel. 535. Dougl. 104, 3. The attorney has a lien on his client's deeds, papers, 238, Mitchell and money, for his bill, and will not be ordered to deliver them without being paid his fees. But not on a deed he has drawn, after it is executed. 1 L. Ray. 738. v. Oldfield. 4 T. R. 123. -12 Mod. 554 & 409.-He is not § 4. The deft. had recovered judgment in the first action against the plt. and B; and in this action the plt. recovered judgment against the deft.; and the court allowed the attorhela to pro- ney of the plt., Mitchell, to be satisfied his costs, before the duce in evi- deft. was allowed to make an off-set of the judgment he had recovered against the plt. and B, against this judgment. Mitchell had absconded; and Lord Kenyon said this off-set was not by the statute of off-sets, but by an equitable jurisdiction the court had often exercised. Mitchell's attorney was dence a pa per, left with him in another cause, 3 Day's Ca. 499; he can concerned only in this his action against the dest., not in the waive his privilege but by leave of court, 9 Johns. R. 216. deft's. action against Mitchell and B. See more cases set-off, Ch. 168, a. 1, a. 6, &c. CH. 15. 5. If an attorney have papers of his client in his hands, the court will order the attorney, on his fees being secured, to 3 T. R. 275, deliver them to his client; but if a third person have an inter- 276, Hughes v Mayre. est in them, the court will direct security that they be produced for his inspection on his demand of them. Practice the K. B., and C. B., are different. 2 H. Bl. 587, and cases cited. 6. In this case it was decided, that if the plt. settle the Dougl. 238, debt and costs with the deft. before the plt's. attorney has been Welsh v. paid his fees, the court will not compel the deft. to pay him, Hole, not unless he gave notice to the deft. not to settle with the plt. from serving privileged till his bill should be paid; this strongly implies that if he had in the militia, given such notice, the action could not have been settled with- 9 Johns. R. 347; his privout paying his fees-Is it difficult to reconcile the English ileges may cases, with that of Gatchell v. Clark? See Howell v. Harding. be taken ute, ib. 7. In this case the court held, that an attorney had a lien away by statfor his bill on monies levied by the sheriff, under an execution 1 H. Bl. 122, on a judgment recovered by his client, though the defendant Griffin v. Eyles. had notified the sheriff to retain the money, stating he should move to have the judgment set aside for irregularity. Erle. 8. The plt. recovered judgment against the deft. for £400 8 T. R. 407, on a bond, charged him in execution in 1783, and died in 1797. Pyne v. In this term (1799) the deft. moved to be discharged out of custody, his wife having taken administration on the plt's. estate. The court held the plt's. attorney had no lien on the judgment, so as to prevent the deft. being discharged; that the action was destroyed by the deft's. wife taking administration to the creditor. 9. But it is to be observed, that these rights can only ex- 12 Mod. 251. tend to persons who can legally be attornies, and in the case in which the service is done. Who is, or is not, such a one, is properly to be considered under the head of attornies generally. Every attorney is under the power of the court and amenable to it, and may be attached for any contempt of it. Mass. Act, Feb. 26, 1811; this act provides that in case of cross executions the attorney's lien shall not be affected; 11 Mass. R. 236, Baker v. Cook; this act gives him a lien. 1 Com.D.528. ART. 3. Submission by an attorney. § 1. If B submit to 1 Salk. 70. reference as the attorney of C, B shall be bound. See the Skin. 679.— case of Bacon v. Duberry, ante. It must be understood, the See Arbitraattorney is bound only when he does not bind his principal, ei- tion, Ch. 13, ther because he has no power to bind him, or because he does not proceed in a manner to bind him; for if the attorney has power to bind his principal, and does in fact so submit to reference as to bind him, then the submission is the principal's Сн. 8 T. R. 571. 4 East 190, Burn v. Grey. 1 Bac. Abr. 123, 198. act, he is bound, and the attorney is not personally bound. See Banfill v. Leigh & al., where a practising attorney may legally relinquish his business to others on terms. ART. 4. Who is an attorney &c. An attorney is one put in the place of another, and is public, as an attorney at law, or private, "who has authority given him to act in the place and stead of him by whom he is delegated, in private contracts and agreements," which authority must be by deed, "that it may 606, 607, 625 appear that the attorney has pursued his commission." And --1T.R.62.- feme coverts, minors, aliens, &c., may be attornies. He must have a lawful warrant. Co. L. 481 Com. D. 2 Salk. 89, 96-Chitty 27 Chitty 27. 7 T. R. 209. F. N. B. 59. 3 Salk. 49, 50. 2d Part of the Act Nov. 4, 1785.-3 Bl. 2. According to the case of Needham v. Gorham, and other cases, a deed or written power is not always necessary to constitute an agent or an attorney, but that by parol appointment one may refer to arbitration, or transact business for another. The English anciently required every one to appear in court in person as the writ commanded. 3. By Massachusetts Colony Laws, revised A. D. 1673, all plts. were allowed to sue for any estate, or to sue for any right, by attorney authorized under hand and seal and now every deft. in a criminal cause must appear in person, except 2 Hawk. P.C. in a few cases in which the court may allow his appearance by 273.-1 Bac. attorney. In every capital case he must appear in person; to this rule there can be no exception; but for every crime under the degree of capital, the deft., by the favour of the court, may appear by attorney, and this till conviction. Abr. 185. Chitty 27.7 T. R. 209. Statute of the The many cases in the old laws of England, in which the party could appear by attorney, only by particular statutes, or the king's license, may now be put out of the question. One may be attorney by parol, to sign and endorse bills and notes &c. 4. By this act of the United States, in all their courts, "the parties may plead and manage their own causes personU. S. Sept. 4, ally, or by the assistance of such counsel or attornies at law," as by their rules may be permitted. Laws of Maine, Ch. 89. $5. And by the Constitution of Massachusetts, every man may be heard in his defence by himself or counsel. 1789. Art. 12, Declaration of Rights. The court on equity and policy will By many statutes passed, and by the rules of all our courts, general prin- no man can be admitted to practise as an attorney or counselciples of lor in them, unless he be of a good moral character, and is properly qualified, and has taken and subscribed the necessary oaths. The statutes and rules in regard to this subject in the United States are numerous, and to be found at large in the and their cli- statute books, rules of courts, and bar rules, which are, very generally, calculated to form and preserve in the United States. a respectable order of lawyers. examine the dealings between them ents, and guard the lat ter &c. 9 Johns. R. |