should be paid over to the debtor. The balance of $200 does not appear ever to have been paid by Dickson; and the $1,305.17, for aught that appears in the record, is still in the hands of Talbert, and never has been received by Erwin. The decree of the circuit court granting relief, must, therefore, be varied, so far as to make it dependent upon the payment of the whole $1,505.17 to Erwin.

99. Right to employ attorney.

Every litigant has a right to appear in court by counsel, and to deny this right is a great wrong. Even after judgment by default the defendant may appear by counsel and contest the plaintiff's right to recover more than nominal damages. Hightower v. Hawthorn, Hemp., 43.

§ 100. Substitution.- A party will not be permitted to substitute a new solicitor in place of one who has had charge of the cause, without the consent of the court. Sloo v. Law,* 4 Blatch., 269.

§ 101. Where a solicitor abandons the cause, or is unfaithful, or brings a suit for his fees, the court will permit a change and may order him to deliver up the papers in the cause without payment of his fees. But where a solicitor had been notified that his services were no longer wanted, and efforts had been made to substitute another in his place, the bringing of a suit for his fees was not sufficient to authorize his discharge. Ibid.

§ 102. Presumption as to authority. The appearance of a regularly licensed practitioner of a chancery court is always received as evidence of his authority, and this although he acts for a corporation. Osborn v. United States Bank, 9 Wheat., 829. Affirming the general rule that an attorney's authority is presumed, see, also, Hill v. Mendenhall, 21 Wall., 454; Standefer v. Dowlin,* Hemp., 209.

§ 103.

solicitor of corporation.— The general solicitor of a corporation, being an officer unknown to its articles of incorporation and the by-laws, has no authority to institute and prosecute a suit without the sanction of the board of directors. And the action will be dismissed on a motion for that purpose, where the want of such authority is shown. Des Moines, etc., R. R. Co. v. Chicago, etc., R. R. Co., 2 McC., 531.

$104. attorney-general.-The authority of the attorney-general of a state is presumed. Pennsylvania v. Wheeling, etc., Bridge Co., 13 How., 560. § 105.

other attorneys of state. But in a habeas corpus case, where officers of the United States were imprisoned by state authority, no counsel has a right to appear and defend the process of the state, unless authorized to do so by the officers of the state, and the retainer of the officer executing the process of the state is insufficient. Ex parte Jenkins, 2 Wall. Jr., 523.

§ 106. from record. A record which shows an appearance by attorney will bind the party until it is proven that the attorney acted without authority. In a suit on such a judgment on a plea of nul tiel record, evidence of the attorney's lack of authority is inadmissible. Such lack of authority must be specially pleaded. Hill v. Mendenhall, 21 Wall., 454.

§ 107. Questioning authority-Proof.-If the authority of counsel to appear is disputed, the statement of the counsel that he is authorized to appear must be conclusive till his want of authority has been shown by adequate proof. Alabama & Chattanooga R'y Co. v. Jones,* 5 N. B. R., 100.

§ 108. An attorney's authority to appear and prosecute or defend may be questioned by motion that he file a warrant of attorney, but this must be made upon affidavits averring positively, and not upon information and belief, the grounds and reasons for questioning the authority. Standefer v. Dowlin,* Hemp., 209.

§ 109. collaterally. Where the record contains an entry that a party appeared by attorney, this recital cannot be controverted in a collateral proceeding, but the judgment can only be attacked, on this ground, in a direct proceeding. Landes v. Brant, 10 How., 371.

§ 110. Exhibiting warrant.— It seems that where an attorney is required by statute, under penalty, to file his warrant at a specified time, the court will not impose the penalty if he file the warrant when required. King of Spain v. Oliver, 2 Wash., 430.

§ 111. All courts inherently possess the power to require attorneys, at the very threshold of a case, to produce their warrant of attorney; but this power may be modified or abrogated by statute. If sufficient authority, either by parol or in writing, is exhibited by the attorney, his proceedings will not be summarily arrested. Ibid.

sents.

$112. Authority as to acceptance of service and appearance. — An appearance and waiver of process by a regular practicing attorney is prima facie the act of the party he repreBut if such appearance is unauthorized, his waiver of process confers no jurisdiction, and the judgment is void. That such appearance is unauthorized may be shown by the attorney. Shelton v. Tiffin, 6 How., 186.

1458

§ 113. Appearance without authority. It seems that an attorney who, without authority, appears and answers for a party not served with process is liable for damages. Field v. Gibbs, Pet. C. C., 158.

§ 114. Service on executrix of deceased attorney.-The citation on a writ of error was served on the widow and executrix of a deceased attorney who had appeared in the case, and also on the deceased attorney's law partner. Held an insufficient service. The character and duties of counsel do not devolve on his representatives after his death; and the supreme court will not notice law partnerships or other private relations among members of the bar. The court can know no counsel in a cause except those who regularly appear as such on the record. Bacon v. Hart, 1 Black, 39.

§ 115. The service of an order of the circuit court upon the law agent of the attorney in the supreme court of New York is not a good service. Smith v. Jackson, 1 Paine, 487.

§ 116. Effect of appearance.— An appearance by an attorney waives a defect in the direction and service of a writ of error. Knox v. Summers, 3 Cr., 498.

§ 117. Service in bankruptcy. The service of a petition for review in a bankruptcy proceeding may be made upon the counsel of the petitioner in the original proceeding. The proceedings for review are a part of the original case, and the parties are still in court. Reasonable notice to counsel accomplishes the ends of justice. Alabama & Chattanooga R'y Co. v. Jones,* 5 N. B. R., 100.

§ 118. Withdrawal.- An attorney or solicitor cannot withdraw his name, after it has been entered on the record, without the leave of the court; and service upon him before withdrawal is as valid as if upon the party himself. United States v. Curry, 6 How., 111.

§ 119. Authority to make affidavit as to costs.- A proctor may make an affidavit to be used as the basis of a motion to require a libelant to furnish additional security for costs. The Brig Harriet, Olc., 223.

$120.- to swear client - The affidavit of a party to an action may be sworn to before his counsel, and may be all in the latter's handwriting. Atkinson v. Glenn, 4 Cr. C. C., 135. $121.- to verify libel.- Under a rule of the district court which allows an attorney in fact or proctor to verify a libel, a verification by an attorney at law is not sufficient, and a defendant cannot be held to bail on a libel so verified. Martin v. Walker, Abb. Adm., 583. § 122. to amend application for patent.- An attorney for an inventor has no authority, after the death of his client, to amend the application for a patent in a material point in the name of the deceased. Eagleton Manuf'g Co. v. West, Bradley, etc., Manuf'g Co., 2 Fed. R., 779,

§ 123.

- to approve bailee in attachment.- An attorney has authority as such to approve the appointinent of a bailee or receiptor of property in an attachment suit. Pierce v. Strickland, 2 Story, 302.

$ 124.

to consent to assignment for creditors.— An attorney at law to whom is given a discretionary power in the collection of a debt may assent to an assignment for the benefit of creditors, if that appears to him to be the best method of securing the debt. Gordon v. Coolidge, 1 Sumn., 544.

-

§ 125. to purchase for his client at foreclosure sale An attorney has, virtute officii, no power to purchase land, for his client, at a foreclosure sale under a mortgage held by his client; and the burden of proving that he had authority to purchase rests on him. Savery v. Sypher, 6 Wall., 159. § 126. to release indorser.— An attorney in whose hands a note is placed for collection, cannot, without authority from his client, make any agreement with the maker of the note which will release an indorser from his liability thereon. Varnum v. Bellamy, 4 McL., 91. § 127. to extend note.-It seems that an unauthorized extension of time to a principal on a note by an attorney will not discharge the indorser, if made without authority. Suydam v. Vance, 2 McL., 101.

§ 128. An attorney's agreement with an administratrix, whose intestate was liable on a note as indorser, that if she would not dispute the liability, but confess judgment for the amount of the note, he would take out an execution immediately against the maker, and make the amount of the judgment out of his property, which he represented was sufficient, is within the scope of his authority as attorney. Union Bank of Georgetown v. Geary, 5 Pet., 112; S. C., 3 Cr. C. C., 236.

§ 129. Compromise by proctor.- A proctor has no power by virtue of a retainer to compromise a claim, but must have special authority. The amount paid to a proctor on an unauthorized compromise abates the claim pro tanto merely. Bates v. Seabury, 1 Spr., 434. $ 130. by government officer.-It seems that a solicitor, in the collection of debts due to the government, is limited only by the exercise of a judicious discretion, and may take security for the money, give time for the payment of it, or may compromise the debt. United States v. Hudson, 3 McL., 157.

§ 131. The government is at liberty to settle a suit before the court of claims with the claimant's attorney, pendente lite, and the settlement, in such a case, must stand. If there is any question in regard to it, it is between the attorney and his client. Stow v. United States,* 5 Ct. Cl., 371.

§ 132. of insurance claim.- In an action on a life insurance policy the attorneys for the plaintiff had full and express authority to compromise the suit, and, pending a writ of error from the supreme court to reverse the judgment below in favor of the plaintiff, the attorneys compromised the matter, accepting about two-thirds of the amount of the judgment, and satisfied the judgment on the record instead of in open court, though during term time. Held, that the compromise of the claim by the attorneys under these circumstances was proper, though the original plaintiff had died pending the proceedings, and they had been revived in the name of the administrator de bonis non, and between whom and the attorneys there was no agreement as to compromise, and especially as the validity of the claim was quite doubtful. Jeffries v. Union Mutual Life Ins. Co., 1 McC., 115; S. C., 1 Fed. R., 451. § 133. - acquiescence.— A compromise made by an attorney in fact as well as at law, and acquiesced in by the client for more than twelve years, will not be disturbed. Mayer v. Foulkrod, 4 Wash., 511.

§ 134. Authority to stipulate for foreclosure decree.- Attorneys may stipulate for a decree authorizing the sale of mortgaged premises in a foreclosure suit. Such stipulation, being otherwise unexceptionable, will not be set aside because of an amendment of the bill by a subsequent order making a defendant a co-complainant. Farmers', etc., Bank v. Ketchum,* 4 McL., 120. $ 135. or decree as to trust property.- An attorney for several trustees, or one of the trustees, acting as such, has no implied power in any case to consent to a decree which takes the trust out of the hands of the trustees, or places the execution of it, in whole or in part, in other hands, and especially in case of a public trust, as in the case at bar. Vose v. Trustees Internal Improvement Fund, 2 Woods, 655.

$136.

ceases, when-Execution.- An attorney's authority ceases with the obtaining of judgment, except for the purpose of taking out execution and acknowledging satisfaction. Kamm v. Stark, 1 Saw., 551; Union Bank of Georgetown v. Geary, 5 Pet., 113. Whenever the judgment is enforced, or satisfied by execution, or otherwise, it ceases absolutely. Serv ice of a subpoena to appear and defend a suit in equity to stay proceedings on the judgment will not be ordered to be made on the attorney, where the defendant is out of the jurisdiction of the court, after the judgment has been enforced and the attorney's authority is at an end. Kamm v. Stark, 1 Saw., 551.

§ 137. to instruct officer.- An attorney's authority is complete to control the remedy which the law gives him to secure or collect the debt of his client. He may give such general instructions to the officer as to the execution of process as he may deem best calculated to advance the interests of his client, and, if followed, they will bind his client and exonerate the officer. Rogers v. The Marshal, 1 Wall., 651.

§ 138. to cancel satisfaction. After an attorney has satisfied a judgment, he cannot cancel the satisfaction and authorize the issuing of an execution thereon; and a sale under such execution is void, because the sheriff could only act under a valid power. Wills v. Chandler, 2 Fed. R., 275.

§ 139.

to satisfy judgment.— An attorney employed by a party to prosecute a claim to judgment has authority, by virtue of such relation, to receive the amount of the judgment for the plaintiff. Black v. Drake,* 2 Col. T'y, 333.

III. ATTORNEY AND CLIENT. DUTIES AND LIABILITIES OF ATTORNEYS.

SUMMARY - Liability in examining title, § 140.- Purchase from client, §§ 141, 142.- Adverse retainer, § 143.- Joinder of secured and unsecured debts in one suit, § 144.- Failure to attend levy, 145.- Not liable for mistake, § 146.— Suits for fraud and negligence, § 147.— Ratification, § 148.

§ 140. An attorney employed by the owner of land or his agent, to certify to the validity of its title and as to the incumbrances upon it, is not liable for an error in his certificate to one who loans money relying upon its correctness, there being no fraud, collusion or falsehood on the part of the attorney, and he not having been employed by the lender to examine the title and give the certificate. Savings Bank v. Ward, §§ 149–157.

§ 141. A sale by a client to his attorney of property in litigation, the attorney conducting the litigation and advising the client as to its probable result at the same time that he is negotiating to buy the property, is void. Rogers v. Marshall, §§ 158-167.

§ 142. In any case of sale by a client to his attorney the burden is upon the attorney to show that the transaction was absolutely fair. He must thoroughly inform himself of the value of the property before undertaking to advise his client as to the terms of its sale. And if he intend to purchase himself, he must disclose all persons who are associated with him in the purchase. Facts showing relation of attorney and client. Ibid.

§ 143. Although an attorney may omit to disclose to his client an adverse retainer, yet if the client suffers no damage from the omission, the attorney will be acquitted of any intent to defraud. Williams v. Reed, §§ 168-174.

§ 144. An attorney will not be held guilty of an intent to defraud, where he unites in one suit secured debts with unsecured debts, and takes a single judgment for the whole. In such a case equity will apply any money collected on execution to the unsecured debts, so as to leave the security unimpaired. Ibid.

§ 145. The failure of an attorney to attend a levy of an execution in favor of his client, and personally to superintend an appraisement and sale thereunder of the debtor's property, is not evidence of fraud, although the appraisers may have overvalued the property to the loss of the client. Ibid.

§ 146. It is the duty of courts to supervise the conduct of their officers, and to discountenance malpractice and abuse; but a reasonable indulgence must be allowed for inadvertence, mistake, and honest though misguided exercise of discretion. Ibid.

§ 147. A suit in equity lies for an attorney's fraud. Only an action at law lies for an attorney's negligence or unskilfulness. Ibid.

§ 148. A ratification, made in ignorance of material facts, cannot give validity to the acts of an attorney in the conduct of a suit, nor repel the imputation of fraud. Ibid. [NOTES.-See §§ 175-214.]

SAVINGS BANK v. WARD.

(10 Otto, 195–208. 1879.)

ERROR to the Supreme Court of the District of Columbia. § 149. Skill required of attorneys in examining abstracts. Opinion by MR. JUSTICE CLIFFORD.

Attorneys employed by the purchasers of real property to investigate the title of the grantor prior to the purchase impliedly contract to exercise reasonable care and skill in the performance of the undertaking, and if they are negligent, or fail to exercise such reasonable care and skill in the discharge of the stipulated service, they are responsible to their employers for the loss occasioned by such neglect or want of care and skill. Addison, Contr. (6th ed.), 400. Like care and skill are also required of attorneys when employed to investigate titles to real estate to ascertain whether it is a safe or sufficient security for a loan of money, the rule being that if the attorney is negligent or fails to exercise reasonable care and skill in the performance of the service, and a loss results to his employers from such neglect or want of care and skill, he shall be responsible to them for the consequences of such loss. Addison, Torts (Wood's ed.), 615.

STATEMENT OF FACTS.- Pursuant to that rule of law the plaintiffs sued the defendant, and alleged as the cause of action that they retained and employed him to examine and ascertain the title of the possessor of certain premises situate in the city of Washington and described in the declaration, and to report to them the nature and extent of his title to the same; and they allege that he, the defendant, accepted the employment, and reported to them that the title of the possessor of the premises was good and unincumbered. Their theory as alleged in the declaration is that they procured that report with a view to the making of a loan, and they allege that upon the faith and credit of it they loaned the sum of $3,500 to the pretended owner of the premises, and accepted

as security for the same a trust deed of the property, whereas the borrower of the money was insolvent and had no title whatever to the premises, as fully and explicitly appears by a prior deed of conveyance duly recorded. Process was duly served, and the defendant appeared and pleaded the general issue, which was duly joined by the plaintiffs. Continuance followed, and at the opening of the next term the parties went to trial, and the verdict and judgment were in favor of the defendant. Exceptions were filed by the plaintiffs, and they sued out the present writ of error.

Six errors are assigned in this court, of which three will be separately examined. They are as follows: 1. That the court erred in ruling that some privity of contract, arising from an actual employment of the defendant by the plaintiffs, is necessary to enable the latter to maintain the action. 2. That the court erred in holding that the evidence introduced did not establish such a privity of contract between the parties as entitled the plaintiffs to recover. 3. That the court erred in instructing the jury that upon the whole evidence the verdict should be for the defendant.

Evidence was introduced by the plaintiffs tending to prove that the defendant is an attorney at law doing business in the city, and that he held himself out to the public as a person skilled in the examination of titles to real estate situated in the District of Columbia. That the claimant of the lot described in the transcript employed the defendant, in his professional character, to examine his title to that lot, and to report to him the condition of the same, and that the defendant, pursuant to that employment, reported to his employer that his title to the lot is good, and that the property is unincumbered, the report being signed by the defendant and his son.

It is not pretended by the plaintiffs that they ever employed the defendant to examine the title to the lot, and it appears that the report was made at the sole request of the claimant of the lot, without any knowledge on the part of the defendant as to the purpose for which it was obtained. All that is con-ceded by the plaintiffs; but they gave evidence to show that the claimant of the lot presented the certificate to certain brokers, and employed them to nego tiate a loan upon the property in his favor for $3,500, on the faith of that certificate. Detailed statement is given in the transcript of the steps taken by the brokers to obtain the required loan, the substance of which is that they required the party to give a negotiable note for the amount, payable in one year, with ten per cent. interest, and that he and his wife should execute a trust deed of the lot to them as trustees to secure the payment of the note when due. Preliminaries being arranged, the brokers applied to the plaintiffs for the loan and obtained the same, giving the note and deed of trust with the certificate as security for the payment. Before accepting the papers, the plaintiffs, through their agent, required the brokers to sign the name of the borrower to the formal application for the loan, as exhibited in the transcript, and that the certificate as to the title should be continued to the date of the transaction. Throughout, the negotiation for the loan was conducted entirely by the brokers with the plaintiffs, and it was the borrower who procured the second certificate from the defendant, the evidence showing that the defendant never came in contact either with the plaintiffs or the brokers.

Payment of the note was not made at maturity, and when it was attempted to sell the premises under the trust deed, it was discovered that the certificates were untrue, and that the grantors, on the 13th of March previous, had conveyed the premises in fee simple, by deed duly executed and recorded.