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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.1 (a) But for mere negligence in the conduct of his client's business, the courts

บ.

1 1 Tidd's Practice, 85-98 (9th ed.); Sharp v. Hawker, 3 Bing. N. C. 66; De Wolfe 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 hearing governed by the laws of evidence, and to be confronted with the witnesses against him, and to subject them to crossexamination. The evidence, however, offered to induce the court to grant an order commanding the accused to show cause why he should not be disbarred is not governed by the common-law rules of evidence, and affidavits are sufficient. In re Percy, 36 N. Y. 651.

It has been said that it would be a great misdemeanor in an attorney, rendering him liable to censure and punishment as well as to an action for damages in a proper case, if he were to enter an appearance without authority. Smith v. Bowditch, 7 Pick. (Mass.) 137; Lewis v. Sumner, 13 Met. (Mass.) 269. Ignorance of the law is not good cause for removing or suspending an attorney from practice. Bryant's Case, 24 N. H. 149.

An attorney, when delivering up papers entrusted to him, is bound to deliver them up in a reasonable state of arrangement, so that the party to whom they are delivered may not be put to unreasonable trouble in sorting them. Northwestern Railway Co. v. Sharp, 28 Eng. Law & Eq. 555. If an attorney, suspecting that his client is engaged in a systematic course of fraud and forgery, continues to act for him as if he were assisting to enforce just rights and to give effect to genuine documents, he is guilty of gross misconduct, although not originally privy to the frauds, and although never informed of the manner in which the forged documents were obtained, and although, to carry on the imposture, persons may be introduced to him acting in a feigned name. In re Barber, 6 Eng.

Law & Eq. 338. Where an attorney has fraudulently misapplied money received from his client for a specific purpose, the court will exercise its summary jurisdiction by ordering him to pay the money, although he has obtained a certificate of protection from the bankruptcy court. In

re

30 Eng. Law & Eq. 390. Courts will, in exercising their powers over attorneys, inquire into character in those particulars which show them professionally untrustworthy. Baker v. Com., 10 Bush (Ky.), 592; In re Hirst, 9 Phila. (Pa.) 216.

(a) There has been of late years a tendency to enforce this summary jurisdiction of the court over its attorneys with somewhat greater stringency than formerly, in order to keep the standard of professional conduct from being lowered by the example of those attorneys whose practices are a disgrace to the profession. In the matter of Gale, 75 N. Y. 526, where the attorney of a married man had assisted his wife to manufacture evidence, which, if not untrue, was deceptive, in order to allow her to procure a divorce, the Supreme Court held that the order disbarring the attorney should be affirmed. Cf. Proctor's Case, 71 Me. 288. when there was record evidence that the attorney was convicted of a felony on a plea of guilty, his name was stricken from the rolls of the court. Re McCarthy, 42 Mich. 71.

So

When an attorney has been disbarred, he is no longer competent to represent any one in any court of the State where he was formerly a practising attorney. Cobb v. Judge of the Superior Court, 43 Mich. 289.

will not interfere in this manner, but will leave the party to his remedy by action.1

§ 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.5

§ 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; 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;8 or were any other misfeasance or neglect as a professional agent

1 Brazier v. Bryant, 2 Dowl. P. C. 600; In 2 Ante, vol. i. §§ 501-514.

Steph. N. P. 434. And see infra, § 599. Robinson v. Ward, 2 C. & P. 59. 7 Stannard v. Ullithorne, 10 Bing. 491.

re Jones, 1 Chitty, 651.

8 Russell v. Palmer, 2 Wils. 325, 328.

Ireson v. Pearman, 3 B. & C. 799. 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; 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.2

1 1 Steph. N. P. 434. And see Gore v. Brazier, 3 Mass. 543.

2 Hamilton v. Cutts, 4 Mass. 349; Sprague v. Baker, 17 Mass. 586, 590.

(a) It has been held that if counsel be retained to defend a particular title to real estate, he can never thereafter, unless his client consent, buy the opposing title without holding it in trust for those then having the title he was employed to sustain. Henry v. Raiman, 25 Pa. St. 354. And in no case can an attorney, without

the client's consent, buy and hold, otherwise than in trust, any adverse title or interest touching the thing to which his employment relates. Smith v. Brotherline, 62 Pa. St. 461; Davis v. Smith, 43 Vt. 269; Case v. Carroll, 35 N. Y. 385; Lewis v. Hillman, 3 H. of L. Cas. 607.

BASTARDY.

§ 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 is an important point regarding the conflict of laws. Is a child born out of wedlock, who is legitimated by his parents having married subsequently to his birth (which is the law of legitimacy in some states and countries), legitimate to all intents and purposes, in a state where such is not the law? It may be premised that legitimacy is a status, and the general rule is that a status acquired by persons in one jurisdiction attaches to and travels with them wherever they afterwards reside. Wheaton, International Law, § 84, Dana's ed; Law. ed. ch. II. § 6, pp. 171, 177. But it is said that, as to real estate, the status of the claimant must be tested by the law of the state where the land is situated. Wheaton, International Law, Dana's ed. §§ 85-93; Law. ed. ch. II. § 3, p. 164; Wharton, Conflict of Laws, s. 243. Story, however, in his Conflict of Laws, ch. 4, considers the status of the original jurisdiction to govern, even as regards real estate. The leading case on this point is Birtwhistle v. Vardill, 7 Cl. & Fin. 895, in which the facts were these. A went from England to Scotland, and resided and was domiciled there, and so continued for many years, till the time of his death. During this residence in Scotland A cohabited with M, an unmarried woman, for some years, and had by her a son, B, who was born in Scotland. Several years after the birth of B, who was the only son, A and M were married in Scotland, according to the laws of that country. By the laws of Scotland, if the marriage of the mother of a child, with the father of such child, takes place in Scotland, such child born in Scotland before the marriage is equally legitimate with children born after the marriage for the purpose of taking land and for every other purpose. A died seised of real estate in England. The question was, Is B entitled

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to such property as the heir of A? It was held that he was not so entitled. Tyndal, C. J., giving his opinion in the House of Lords, says, "We hold it to be a rule or maxim of the law of England, with respect to the descent of land in England from father to son, that the son must be born after actual marriage between his father and mother. This is a rule juris positivi, as are all the laws which regulate succession to real estate, this particular rule having been framed for the direct purpose of excluding, in the descent of land in England, the application of the rule of the civil and canon law, by which the subsequent marriage between the father and mother was held to make the son born before marriage legitimate, and that this rule of descent, being a rule of positive law, annexed to the land itself, cannot be broken in upon or disturbed by the law of the country where the claimant was born, and which may be allowed to govern his personal status as to legitimacy, upon the supposed ground of comity of nations." The Court thus decides the question on the ground that in England something more than mere legitimacy is necessary, in order to entitle one to lands. It is legitimacy of the sort that arises from birth after the lawful marriage of the parents. It is believed that the rule as given in the remarks of Tyndal, C. J., is the law in the United States. The principle of Birtwhistle v. Vardill was discussed and approved in Smith v. Derr's Adm'rs, 34 Pa. St. 126. In accord are also Lingen v. Lingen, 45 Ala. 410; Miller v. Miller, 18 Hun (N. Y.), 507. Except as to the inheritance of real estate, legitimacy is decided by the law of the place of birth and domicile. Shaw v. Gould, L. R. 3 H. of L. 55. Cf. Don's Estate, 4 Drewry, 197; Re Wright, 2 K. & J. 595.

several of the States have been enacted, introducing, under various modifications not necessary here to be mentioned, the rule of the Roman law.1 (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, Pennsylvania, 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.

2 See the opinions of the judges in the Banbury Peerage Case, in Nicholas on Adulterine Bastardy, pp. 183, 184; and of Ld. 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 v. Stegall, 2 Brock. 256; Head v. Head, 1 Turn. & Russ. 138; 1 Sim. & Stu. 150; Cope v. 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, impotent; 2dly, 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 wedlock, though within a month or a day after marriage, is presumed to be legitimate; and when the mother was visibly pregnant at the time of the marriage, it is presumed that the child is the offspring of the husband.

State v. Herman, 13 Ired. (N. C.) 502. See Gaines v. Hennen, 24 How. (U. S.) 553, for an examination of the Louisiana cases, the Spanish law, and the Code Napoleon upon this subject.

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