torney, according to the laws of this realm, that all and every such person and persons which shall fortune hereafter to be attorney to or for any other person or persons, being demandant, plaintiff, tenant or defendant, in any action or suit, at any time hereafter commenced or taken in any of the king's said courts, and plead to an issue in the same action or suit, that then the same attorneys, and every of them, from time to time, shall deliver or cause to be delivered, his or their sufficient and lawful warrant of attorney (b) to be entered of record, for every of the said actions or suits wherein they be named attorneys, to the officer or his deputy, ordained for the receipt and entry thereof, the same term when the said issue is entered of record in the said court, upon pain of forfeiting unto our sovereign lord the king, ten pounds sterling, for every such offence, and also to suffer such imprisonment as by the discretion of the justices of the court for the time being, where such default shall fortune to be made or had, shall be thought convenient. 1576. 18 Elizabeth, Chap. 14.-2 Litt. 539. THAT all attorneys in any suit or action in any court of record, shall deliver in the warrant of attorneys in such action or suit wherein they be named attorneys, to be entered or filed of record, in such (b) The long disuse of the warrant of attorney, has not repealed the law that requires it; and the authority of the attorney must still be shown when properly demanded.-McAlexander v. Wright, 3 Mon. 192. 2. The adversary party can demand the authority of the attorney only when he shows his rights are jeopardized without it, or that he was disturbed by being brought into litigation without the consent of the party.-Ibid. 3. That the suit is prosecuted for the use of another, in whose derivation of right to the demand there is a manifest defect, is presumption which ought to put the attorney to show his authority.-Ibid. 4. The attorney's authority cannot be capriciously demanded by the adversary party; he must show probable cause before the requisition can be made.-Ibid. 5. The authority of an attorney employed by the testator, determines by the death of the testator, and he can do no act for the executors, unless he is employed by them.-Clark's Ex'rs. v. Parish's Ex'rs. 1 Bibb, 547; Campbell's Heirs v. Kincaid, 3 Mon. 70; Ball v. Lively, 2 J. J. Mar. 184. 6. After judgment has been obtained, the at Penalty for failure. Warrants of attorney to be produced as heretofore. torney who obtained it has no authority to revive or reverse the judgment without a new warrant of attorney.-Richardson v. Talbot, 2 Bibb, 383. 7. Where no writ has issued, but an attorney appears for the defendant, and pleads to the merits, the authority of the attorney so to do will be presumed in favor of the plaintiff in all contests which may arise between him and the defendant. But if the defendant proves that the attorney acted without any authority from him, no act of the attorney will preclude or prejudice his rights.-Handley v. Statelor, Littell's Select Cases, 186. 8. An attorney at law may refer the suit to arbitration, admit facts on the trial or in pleading, and confess judgment.-Talbot v. M’Gee, &c. 4 Mon. 377. The court of appeals cannot originate an inquiry into the fact whether the attorney who acted below, was in fact the attorney of the party. -Ibid. 9. Attorney at law cannot sue out scire facias or writ of error without new warrant; nor can he release a judgment without special authority, unless the thing for which judgment was obtained be delivered.-Ball v. Lively, 2 J. J. Mar. 184. manner and form as heretofore by the laws and statutes in that behalf made, they should or ought to be done, upon pain to forfeit ten pounds for every such offence, the one moiety thereof to the queen's majesty, her heirs and successors, and the other moiety to such officer or officers to whom or in whose office the said warrant should be dePenalty for livered, entered or filed, and suffer imprisonment by the discretion of the justices of the court for the time being, where any such default shall fortune to be had or made; the said ten pounds to be recovered by action of debt, bill or information. failure. Counsel or attorneys, how suspended for mal-practice. License to practice law to be obtained. honest demean our to be produced to judges 1786. AN ACT for licensing Counsel, Attorneys at Law and Proctors.-12 Hening's "IF the general court, from their own observation, detect any mal-practice in a counsel, or attorney of that court, or if a complaint in writing be made to them, of such mal-practice in the said court, or in the court of a county, city, or borough, the party accused shall be summoned to show cause why an information should not be filed against him; and if such information be ordered, and he be found guilty, of the matter therein charged, the said general court may either suspend his license, during a certain time, or vacate it altogether, as they shall think him to have deserved." 1796. IN FORCE FROM THE FIRST OF MARCH 1797. AN ACT prescribing the mode of licensing Counsel or Attorneys at Law: Approved December 13, 1796.-1 Litt. 365. SEC. 1. Be it enacted by the General Assembly, That no person shall be permitted by any court to practice therein, as counsel or attorney at law, unless he shall have obtained a license in writing from two or more of the judges of the court of appeals or district courts; which license, if he produce to them a certificate from the Certificate of court of any county, that he is a person of honest demeanor, such two or more judges are empowered and required to grant under their hands and seals, if after examination it be their opinion that he is duly qualified: but nothing herein contained shall be so construed as to affect any person who may have obtained a license from the judges of the general court in Virginia, and was an inhabitant of the district of Kentucky at the time it was formed into a separate state, or from the judges of the supreme court for the district of Kentucky; but such person shall be permitted to practice as counsel or attorney in any court, by virtue of such license. Who not required to obtain license under this act. Attorneys SEC. 2. Every counsel or attorney, before he be permitted to must take oath, practice, shall take the following oath or affirmation, to-wit: "I do and form there swear that I will honestly demean myself in the practice of a coun- SEC. 3. A person who shall have been convicted of treason, felony, forgery or wilful and corrupt perjury, shall not be suffered to practice in any court as counsel or attorney. 1801. Who not suffered to practise in any court. IN FORCE FROM ITS PASSAGE. AN ACT to amend an act entitled "an act to reduce into one the several acts for preventing vexatious suits, and regulating proceedings in civil cases:" Approved December 18, 1801.-2 Litt. 441. Attorneys officially collecting money and failing to pay it over, may be moved against. SEC. 4. If any practising attorney at law in any of the courts of this commonwealth, shall hereafter, in his official capacity, receive or collect any sum of money for his client or employer, and shall fail or refuse to pay the same, when required so to do by the person legally entitled thereto, (d) or to the written order of such person duly attested, it shall and may be lawful for the person entitled to receive any such sum of money, upon motion made in the court of quarter sessions for the county, or in the district court for the district in which such attorney may reside, having jurisdiction of sums of like amount, to demand judgment against such attorney for all moneys by him. collected, and unaccounted for to his client or employer; and such court is hereby authorized and required to give judgment for the judgment amount so collected and unaccounted for, together with the legal costs of such motion, and to award execution thereupon: Provided, such attorney have ten days previous notice in writing, of such motion. (c) In addition to the above oath, any one desirous of practising as an attorney or counsellor at law, is required to take what is commonly called the duelling oath. See title Duelling, post. (d) An assignment of the benefit of the action by the plaintiff to another, although written by plaintiff's attorney, will not bind him to pay the Court authorized to give for the am'nt with costs. money to the assignee. The attorney is bound by the record and the undertaking with his client, and he must pay the money collected to him, unless from the client he receive sufficient authority to pay to another. Perhaps, if he had paid to the assignee, he might not be responsible to his client.-Lee v. Chambers, 3 J. J. Mar. 508, 509. 1802. IN FORCE FROM ITS PASSAGE. AN ACT to amend an act entitled an act to establish Circuit Courts: Approved SEC. 17. Any two of the circuit judges shall have power to grant Two circuit license to persons as attorneys at law, under the same rules and judges may grant license. regulations as heretofore. 1804. Attorneys em ployed and failing to attend to suffered. IN FORCE FROM ITS PASSAGE. AN ACT concerning Attorneys at Law: Approved Dec. 19, 1804.-3 Litt. 215. SEC. 1. Where any counsel or attorney at law shall or may hereafter undertake to manage or prosecute a suit in chancery or at common law, or make any motion to recover money, or for any other their clients' purpose, in any court in this commonwealth, and shall neglect to suits, to be liable for the costs attend to the prosecution of such suit or motion, and the party or and damages parties who employed such counsel or attorney, having paid the fee, (e) or given his, her or their note in writing for the payment of the same, shall thereby suffer damages, either by non-suit, dismission, or for want of prosecution, such attorney shall be liable to pay to the party or parties so injured, all costs and damages thereby sustained, to be recovered by action on the case, in any court in this commonwealth having jurisdiction in suits for damages; and wherever the party cannot obtain counsel to prosecute such suit in the general court or any circuit court in this commonwealth, it shall be the duty of the commonwealth's attorney for the general court or circuit court, upon the party or parties so injured paying him the fee allowed by law in such cases, to prosecute such suit; and if an appeal is wealth to pros- prayed to the court of appeals, and the aforesaid party or parties cannot obtain other counsel in said court, it shall be the duty of the attorney general to prosecute or defend said appeal, upon his re How to be recovered. In such case, the attorney for the common ecute suit. (e) An attorney is liable to his client for an injury consequent on his negligence or misconduct but if he sues out a writ for £26 in debt, and declares and obtains judgment for £261, which is the actual amount of the obligation, this affords no cause of action against the attorney, for the variance is cured by the statute of jeoffails. -Richardson v. Talbot, Bibb, 383. 2. In an action against an attorney for neglect in the management of a suit, it is not necessary to aver that the plaintiff had paid or se cured a fee to the defendant; but an averment that the defendant undertook to prosecute the suit for a fee thereafter to be paid, is sufficient. Eccles v. Stephens, 3 Bibb, 517. In such a suit, the amount of the debt in the first action is not the measure of damages, but the actual damage sustained is to be ascertained by the jury.-Ibid, 518. The above act is affirmative, and does not repeal the common law: an attorney is still liable in all cases in which he was before the passage of the act.-Ibid. ceiving the legal fee in such cases; and where the attorney for the commonwealth in the general court or county court, or the attorney general in case of an appeal, shall be a party, it shall be the duty of the different courts to assign counsel to prosecute or defend said suits, as the case may be, and the counsel so assigned shall receive the fees allowed by law in like cases, to be paid by the party or parties to whom they are assigned. In appeals, al to prosecute attorney gener general, or for commonwealth be party, court to assign coun sel. In what ca ses attorneys to repay fees. In case of failure to repay, where and how cover. SEC. 2. Where any person or persons of this commonwealth shall employ and pay any counsel or attorney in any case whatever, and such counsel or attorney shall remove, or by any means cease to practice in said court, or shall not attend to such employer's business, (except he is prevented by death,) (ƒ) such fee so paid shall be re-paid to the party or parties, on demand; and in case of failure, the party shall recover such fee from any attorney so failing, if the amount of said fee shall exceed five pounds, in the general court or client may reany circuit court in this commonwealth, by giving said attorney ten days' previous notice in writing; and if the amount of the fee so paid shall not exceed five pounds, it shall be lawful for the party injured, upon his giving ten days' notice in writing to the attorney of the time and place of making such motion, to make the same before any justice of the peace in the county where the attorney resides; and upon due proof being made that the attorney has had notice, and that he has received the fee, and failed, neglected or nounce refused to attend to the business for which he has been paid, to pro- replevin allownounce judgment and award execution, as in other cases before such ed on execution court or justice of the peace, as the case may be; and no replevin shall be had on such execution. 1805. Court to pro ment, and judg no IN FORCE FROM ITS PASSAGE. AN ACT preventing Justices of the Peace from acting as Attorneys at Law in the (ƒ) If an attorney stipulates for a particular fee, and dies before the business is completed, his representatives are entitled only to a reasonable allowance for the services he had rendered, to be ascertained by the verdict of a jury.-Baylor v. Morrison, 2 Bibb, 203. If the client shall have paid the whole of the stipulated fee, he will be entitled to recover from the representatives of the deceased attorney all beyond a reasonable compensation for the services actually rendered.-Ibid. Certain clerks he shall succeed in a suit for obligor, is not made absolute on his representatives, by the death of obligor preventing the success.-Campbell's Representatives v. Kincaid, 3 Mon. 70. Nor after its revivor in the name of the heirs by the attorney with their consent, by a compromise made by the heirs, and the consequent dismissal of the suit without his consent.—Ibid. When the attorney does revive the suit, and acts for the representatives, his claim is on his engagement with them, and not on his contract 2. An obligation to an attorney, on condition with the deceased.-Ibid. |