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perform any stipulation or agreement entered into by him with the counsel or attorney of the other party, respecting the management or final disposition of the cause, or touching the trial or the proofs; or fails to pay or perform anything, which he has personally undertaken that his client shall pay or perform; or improperly refuses to deliver up documents to his client, who entrusted them to him; or to pay over to his client any moneys which he has collected for him; he is liable to this summary mode of proceeding, as well as to an action at law. (a) But for mere negligence in the conduct of his client's business, the courts
11 Tidd's Practice, 85-98 (9th ed.); Sharp v. Hawker, 3 Bing. N. C. 66; De Wolfe V. ---, 2 Chitty, 68 ; In re Fenton, 3 Ad. & El. 404 ; In re Atkin, 4 B. & A. 47. To support the action for moneys collected, it is essential to prove a demand made on the attorney. Satterlee v. Frazer, 2 Sandf. S. C. 141.
denied by the accused he is entitled to a Law & Eq. 338 Where an attorney has hearing governed by the laws of evidence, fraudulently misapplied money received and to be confronted with the witnesses from his client for a specific purpose, the against him, and to subject them to cross- court will exercise its summary jurisdicexamination. The evidence, however, of- tion by ordering him to pay the money, fered to induce the court to grant an order although he has obtained a certificate of commanding the accused to show cause protection from the bankruptcy court. In why he should not be disbarred is not
30 Eng. Law & Eq. 390. Courts governed by the common-law rules of evi- will, in exercising their powers over atdence, and affidavits are sufficient. In re torneys, inquire into character in those Percy, 36 N. Y. 651.
particulars which show them professionIt has been said that it would be a great ally untrustworthy. Baker v. Com., 10 misdemeanor in an attorney, rendering him Bush (Ky.), 592; In re Hirst, 9 Phila. liable to censure and punishment as well (Pa.) 216. as to an action for damages in a proper (a) There has been of late years a tencase, if he were to enter an appearance dency to enforce this summary jurisdiction without authority. Smith v. Bowditch, of the court over its attorneys with some7 Pick. (Mass.) 137 ; Lewis v. Sumner, what greater stringency than formerly, in 13 Met. (Mass.) 269. Ignorance of the order to keep the standard of professional law is not good cause for removing or conduct from being lowered by the exam. suspending an attorney from practice. ple of those attorneys whose practices are Bryant's Case, 24 N. H. 149.
a disgrace to the profession. In the matAn attorney, when delivering up papers ter of Gale, 75 N. Y. 526, where the atentrusted to him, is bound to deliver them torney of a married inan had assisted his up in a reasonable state of arrangement, so wife to manufacture evidence, which, if that the party to whom they are delivered not untrue, was deceptive, in order to may not be put to unreasonable trouble in allow her to procure à divorce, the Su. sorting them. Northwestern Railway Co. preme Court held that the order disv. Sharp, 28 Eng. Law & Eq. 555. If an barring the attorney should be affirmed. attorney, suspecting that his client is en. Cf. Proctor's Case, 71 Me. 288. So gaged in a systematic course of fraud and when there was record evidence that the forgery, continues to act for hiin as if he attorney was convicted of a felony on a were assisting to enforce just rights and to plea of guilty, his name was stricken from give effect to genuine documents, he is the rolls of the court. Re McCarthy, 42 guilty of gross misconduct, although not Mich. 71. originally privy to the frauds, and al- When an attorney has been disbarred, though never informed of the manner in he is no longer competent to represent any which the forged documents were obtained, one in any court of the State where he and although, to carry on the imposture, was formerly a practising attorney. Cobb persons may be introduced to him acting v. Judge of the Superior Court, 43 Mich. in a feigned name. In re Barber, 6 Eng. 289.
will not interfere in this manner, but will leave the party to his remedy by action.
§ 148. Plaintiff's case when a debt is lost. Where the remedy against an attorney is pursued by action at law, and the misconduct has occasioned the loss of a debt, the existence of the debt is a material fact to be shown by the plaintiff. If it were a judgment, this is proved by a copy of the record, duly authenticated.2 If not, and an arrest of the debtor upon mesne process is a material allegation, the writ must be proved by itself, or by secondary evidence, if lost; unless it has been returned ; in which case the proof is by copy. If the injury to the plaintiff was occasioned by departure from the known and usual course of practice, this should be shown by the evidence of persons conversant with that course of practice. The fact of indebtment to the plaintiff, by his debtor, must also be proved by other competent evidence, where it has not yet passed into judgment. In short, the plaintiff has to show, that he had a valid claim, which has been impaired or lost by the negligence or misconduct of the defendant. And if the attorney, having received money for his client, mixes it with his own, in a general deposit with a banker in his own name, and the banker fails, the attorney is liable for the loss. He should have deposited it in his client's name, or otherwise designated it as money held by him in trust for his client, so earmarked as to be capable of precise identification.
§ 149. Where there is injury by neglect in making title. If the injury to the plaintiff resulted from the attorney's neglect in regard to a conveyance of title, or in the examination of evidences of title, it is, ordinarily, necessary to produce the deeds or documents in question; whether the neglect were in a case drawn up for the opinion of counsel, in which certain deeds materially affecting the title were omitted ; 6 or in the insertion of unusual and injurious covenants of title in a lease, without informing him of the consequences;7 or in advising him, or acting for him, in the investment of money under a will, upon the perusal of only a partial extract from the will, and not of the entire will itself; or were any other misfeasance or neglect as a professional agent
1 Brazier o. Bryant, 2 Dowl. P. C. 600 ; In re Jones, 1 Chitty, 651. ? Ante, vol. i. $$ 501-514.
8 Russell v. Palmer, 2 Wils. 325, 328. Steph. N. P. 434. And see infra, 599. 6 Robinson v. Ward, 2 C. & P. 59. 6 Ireson v. Pearman, 3 B. & C. 799. 7 Stannard v. Ullithorne, 10 Bing. 491. 8 Wilson v. Tucker, 3 Stark. 154.
in the conveyance of title. (a) And if the client has thereby been evicted from the land, he should prove the eviction by a copy of the judgment, and by the writ of possession duly executed;1 or, if he has peaceably submitted to an entry and ouster without suit, he must show that it was in submission to an elder and better title.
1 i Steph. N. P. 434. And see Gore v. Brazier, 3 Mass. 543.
(a) It has been held that if counsel the client's consent, buy and hold, other. be retained to defend a particular title to wise than in trust, any adverse title or in. real estate, he can never thereafter, unless terest touching the thing to which his his client consent, buy the opposing title employment relates. Smith v. Brother. without holding it in trust for those then line, 62 Pa. St. 461; Davis v. Smith, 43 having the title he was employed to sus- Vt. 269; Case v. Carroll, 35 N. Y. 385; tain. Henry v. Raiman, 25 Pa. St. 354. Lewis v. Hillman, 3 H. of L. Cas. 607. And in no case can an attorney, without
$ 150. Bastardy defined. By the common law, children born out of lawful wedlock are bastards. By the Roman law, if the parents afterwards intermarried, this rendered the issue legitimate. (a) The rule of the common law prevails in the United States, except where it has been altered by statutes; which in
(a) On the question of legitimacy, there to such property as the heir of A? It was is an important point regarding the con. held that he was not so entitled. Tyndal, flict of laws. Is a child born out of wed- C. J., giving his opinion in the House of lock, who is legitimated by his parents Lords, says, “We hold it to be a rule or having married subsequently to his birth maxim of the law of England, with respect (which is the law of legitimacy in some to the descent of land in England from states and countries), legitimate to all in- father to son, that the son must be born tents and purposes, in a state where such after actual marriage between his father is not the law? It may be premised that and mother. This is a rule juris positivi, legitimacy is a status, and the general rule as are all the laws which regulate succesis that a status acquired by persons in one sion to real estate, this particular rule jurisdiction attaches to and travels with having been framed for the direct purpose them wherever they afterwards reside. of excluding, in the descent of land in Wheaton, International Law, $ 84, Dana's England, the application of the rule of the ed; Law. ed. ch. Il. § 6, pp. 171, 177. civil and canon law, by which the subBut it is said that, as to real estate, the sequent marriage between the father and status of the claimant must be tested by mother was held to make the son born bethe law of the state where the land is fore marriage legitimate, and that this rule situated. Wheaton, Internatioual Law, of descent, being a rule of positive law, Dana's ed. $$ 85-93; Law. ed. ch. II. & 3, annexed to the land itself, cannot be broken p. 164; Wharton, Conflict of Laws, s. 243. in upon or disturbed by the law of the Story, however, in his Conflict of Laws, country where the claimant was born, and ch. 4, considers the status of the original which may be allowed to govern his perjurisdiction to govern, even as regards real sonal status as to legitimacy, upon the estate. The leading case on this point is supposed ground of comity of nations." Birtwhistle v. Vardill, 7 Cl. & Fin. 895, in The Court thus decides the question on which the facts were these. A went from the ground that in England something England to Scotland, and resided and was more than mere legitimacy is necessary, domiciled there, and so continued for many in order to entitle one to lands. It is years, till the time of his death. During legitimacy of the sort that arises from this residence in Scotland A cohabited with birth after the lawful marriage of the M, an unmarried woman, for some years, parents. It is believed that the rule as and had by her a son, B, who was born in given in the remarks of Tyndal, C. J., is Scotland. Several years after the birth of the law in the United States. The princi. B, who was the only son, A and M were ple of Birtwhistle v. Vardill was discussed married in Scotland, according to the laws and approved in Smith v. Derr's Adm'rs, of that country. By the laws of Scotland, 34 Pa. St. 126. In accord are also Lingen if the marriage of the mother of a child, v. Lingen, 45 Ala. 410; Miller v. Miller, with the father of such child, takes place in 18 Hun (N. Y.), 507. Except as to the Scotland, such child born in Scotland be- inheritance of real estate, legitimacy is fore the marriage is equally legitimate with decided by the law of the place of birth children born after the marriage for the and domicile. Shaw v. Gould, L. R. 3 purpose of taking land and for every other H. of L. 55. Cf. Don's Estate, 4 Drewry, purpose. A died seised of real estate in 197; Re Wright, 2 K. & J. 595. England. The question was, Is B entitled
several of the States have been enacted, introducing, under various modifications not necessary here to be mentioned, the rule of the Roman law.? (a) The modern doctrine of the common law on this subject is this : that where a child is born during lawful wedlock, the husband not being separated from the wife by a sentence of divorce a mensa et thoro, it is presumed that they had sexual intercourse, and that the child is legitimate; but this presumption may be rebutted by any competent evidence tending to satisfy a jury, that such intercourse did not take place at any time, when, by the laws of nature, the husband could have been father of the child. If the husband and wife have had opportunity for inter
1 In New Hampshire, Connecticut, Rhode Island, New York, New Jersey, Pennsyl. vania, Delaware, South Carolina, Tennessee, and Arkansas, the rule of the common law is understood to prevail. A subsequent marriage of the parents renders their prior issue legitimate in Kentucky, Alabama, Illinois, Louisiana, Michigan, and Missouri. Beside the marriage, a subsequent acknowledgment of the child by the father is requisite in Indiana, Ohio, Vermont, Virginia, Maine, and Massachusetts. In Maine, other issue must have been born after the marriage. In Massachusetts, the child can inherit only from its parents. In North Carolina, a decree of legitimacy in favor of ante-nuptial issue is obtained from the courts, on application of the father, after the marriage. See 3 Cruise's Dig. tit. 29, c. 2, § 8, note (Greenleaf's ed.), where the laws of the several States on this subject are more particularly stated.
3 See the opinions of the judges in the Banbury Peerage Case, in Nicholas on Adulterine Bastardy, pp. 183, 184; and of L. Redesdale and Ld. Ellenborough, Id. pp. 458, 488; Morris v. Davies, 3 C. & P. 427 ; 5 C. & Fin. 163; Rex v. Luffe, 8 East, 193 ; Goodright v. Saul, 4 T. R. 356 ; Pendrel v. Pendrel, 2 Stra. 924 ; Stegall 4. Stegall, 2 Brock. 256 ; Head v. Head, i Turn. & Russ. 138 ; 1 Sim. & Stu. 150; Cope 0. Cope, 5 C. & P. 604 ; 1 M. & Rob. 269. The presumption mentioned in the text is not to be rebutted by circumstances which only create doubt and suspicion ; but it may be wholly removed by showing that the husband was, — 1st, inipotent; 2uly, constantly absent, so as to have no intercourse or communication of any kind with the mother ; 3dly, absent during the entire period in which the child must, in the course of nature, have been begotten ; 4thly, present, but under such circumstances as to afford clear and satisfactory proof that there was no sexual intercourse. Such evidence as this puts an end to the question, and establishes the illegitimacy of the child of a married woman.
It is, however, very difficult to conclude against the legitimacy in cases where there is no impotency, and where some society or communication is continued between the husband and wife, during the time in question, so as to have afforded opportunities for sexual intercourse. If such opportunities have occurred, no evidence can be admitted to show that any man, other than the husband, may have been the father of the wife's child, whatever probabilities may exist that it was the child of another man. Throughout the investigation, the presumption in favor of legitimacy is to have its weight and influence, and the evidence against it ought to be strong, distinct, satisfactory, and conclusive. Hargrave v. Hargrave, 9 Beav. 552. This case is valuable for the observations it contains on the nature and extent of the proof necessary to establish a case of adulterine bastardy, and the kind of evidence which is admissible in such cases.
(a) A child born in welllock, though State v. Herman, 13 Ired. (N. C.) 502. within a month or a day after marriage, is See Gaines v. Hennen, 24 How. (U. S.) presumed to be legitimate; and when the 553, for an examination of the Louisiana mother was visibly pregnant at the time cases, the Spanish law, and the Code Na. of the marriage, it is presumed that the poleon upon this subject. child is the offspring of the husband.