Act of February 19, 1816, R. C. ch. 122. Amended by act of March 17, 1837, Ses. Acts 1836-7, ch. 68, p. 44. ration in like manner, and subject to the same rules and regulations as other original process. 2. § 2. If a summons be issued as aforesaid, against any banking,(1) turnpike, insurance, canal, rail-road, mining or manufacturing incorporated company, service on the president or other head, or in his absence, on the cashier or treasurer, or in the absence of both the president or chief officer and the cashier or treasurer, then on any director of such company, shall be deemed a sufficient service of such summons: Provided, That the president or other officer at the time of service is in the county or corporation in which he usually resides, and the summons be served by the sheriff or other proper officer of said county or corporation. And if the summons be issued against the corporation of any city, borough or town, the service shall also be deemed sufficient if it be made on the mayor or chief magistrate, or in his absence, on the recorder, or in the absence of the mayor or chief officer and recorder, then on any alderman or trustee of the corporation, such mayor or other officer being at the time of service within the limits of such corporation: Provided however, That the summons shall be served by the serjeant or other proper officer of said corporation. And in like manner the service of such summons against any incorporated college or academy shall be sufficient if it be made. on the president or rector, or in his absence, on any of its visitors or trustees, such president or rector, visitor or trustee, being at the time of service in the county or corporation in which he usually resides; and the service of such summons against any other corporation than those already specified shall be deemed sufficient if it be made on the chief officer of such corporation, or in the absence of the chief officer, on any member of such corporation, such chief officer or other member being at the time of service within the county or corporation in which he usually resides: Provided however, That such summons shall be served on such president or rector, visitor, trustee, chief officer or member of such corporation, by the sheriff or other proper officer of the county or corporation in which the service is made. And on the return of such summons in any of the said cases, the same proceedings to a final judgment shall be had against such corporation as are had in other suits at law after the return of a capias ad respondendum executed. On every summons served as aforesaid, the sheriff or other proper officer shall make return distinctly on whom the same hath been executed; otherwise such service shall not be deemed valid. 3. § 3. Suits in chancery against corporations shall hereafter commence by subpæna; and the service of such subpœna, and of all interlocutory orders and decrees against such corporations, shall be made in the same manner and under the same restrictions as is herein before provided for the service of a summons in a suit at law. And the same proceedings to a final decree shall be had against such corporations as are had in other suits in chancery. 4. § 4. If any judgment at law or decree in chancery shall be rendered against any corporation, it shall be lawful for the plaintiff in the suit to sue out either a distringas, fieri facias, levari facias or elegit, as he may think proper; and that the said writs of fieri facias and elegit may be levied as well on the current money (c) as on the goods and chattels of said corporation. (1) By act of March 19, 1832, Ses. Acts 1831-2, c. 75, p. 68, Sup. R. C. c. 311, p. 381, the mode is prescribed for the institution and maintenance of suits against branch banks. To bind a bank, &c. in its corporate character it must be sued in its corporate name. See the Bank of Virginia v. Craig, 6 Leigh, 399. On general issue pleaded to action by a bank, plaintiffs must prove their incorporation. Jackson's adm'x v. Bank of Marietta, 9 Leigh, 240. (c) Money in the defendant's possession, may be taken in execution, under a fi. fa. against the goods and chattels of such defendant; and this on the general principles Act of February 19, 1816, R. C. ch. 122. Amended by act of March 17, 1837, Ses. Acts 1836-7, ch. 68, p. 44. 5. § 5. Every officer to whose hands any process authorized by this act shall come for service, shall serve the same, if practicable, and make due return thereof to the court from which such process may issue; and every such officer making default in such service and return, shall be liable on motion of the plaintiff or plaintiffs in such suit, before the court in which it may be instituted, to a fine not exceeding twenty dollars, ten days previous notice having been given of such motion, and moreover be liable to the action of such plaintiff or plaintiffs, for any damages sustained by such default. 6. § 6. If any corporation shall expire, or be otherwise dissolved, all the property, whether real or personal, of which it was possessed, and all debts due to it, shall be subject in the first place to the payment of debts due by such corporation, and then to distribution among the members according to their respective interests. And such corporation and the members thereof shall be liable to be sued by any creditor, or by any stockholder thereof, in a court of law or equity, having jurisdiction thereof, in the same manner, and to the same extent, as if such corporation had not expired or had not been dissolved. But it is not necessary to aver in the declaration, that it is a corporation duly constituted, or that it is authorized by law to sue in its corporate name: these questions may be put in issue by the def., or raised on the trial of the general issue. Rees v. Conococheague Bank, 5 Rand. 326; Bank of Michigan v. Williams, 5 Wendell, 478; 7 Wendell, 539; Taylor's adm'r v. The Bank of Alexandria, 5 Leigh, 471; Wood v. Jefferson Co. Bank, 9 Cowen, 194; Welland Canal Co. v. Hathaway, 8 Wend. 480. A corporation of another state may maintain an action against its debtor in the courts of Virginia. Bank of Marietta, (Ohio,) v. Pindall, 2 Rand. 465; Lombard Bank v. Thorp, 6 Cowen, 46. See The Society for the Propagation, &c. v. The Town of Pawlet, 4 Peters, 480, 501, in which it was held that the general issue admits the competency of the plaintiff to sue in the corporate capacity, &c., which cannot be denied unless by a special plea in abatement or bar. A corporation can sue only in the name and style given to it by law. Porter v. Ne kervis, 4 Rand. 359; but contracts may be made by or with them, by a mistaken name, if the mistake be only in syllabis et verbis, and not in sensu et re ipsa. Culpeper Agricultural and Manufacturing Society v. . Diggs et al. 6 Rand. 165. A corporation cannot be impleaded criminaliter by its artificial name, at common law. The Com. v. Swift Run Gap T. Co. 2 Virg. Cas. 312. A plea of nul tiel corporation, is bad on special demurrer-as amounting to the general issue. See cases above, and The Farmers and Mechanics Bank v. Rayner, 2 Hall's R. 195. The corporators and trustees of a municipal corporation are competent witnesses in behalf of the corporation. The Trustees of Watertown v. Cowen & Bagg, 4 Paige, 510. Bill against a public company incorporated for a limited time, dismissed by the court of chancery-plf. appeals from the decree of dismission; pending the appeal, the charter expires by efflux of time: the appeal abates. Rider v. The Nelson and Albemarle Union Factory, 7 Leigh, 154. See the remarks of Tucker, P. in delivering op. of ct. on the necessity of legislative action, and, act of 17 March, 1837, c. 68, § 6, Ses. Acts p. 46. For the power of a majority of a municipal corporation with the aid of the legis lature, over the minority, see the case of Goddin v. Crump et al. 8 Leigh, 120, 158. 8 Except in criminal cases, &c. In inferior courts, Fees-in general, chancery and supe rior and inferior courts, In court of appeals, 9 Fees taxable in bill of costs-in chan- 10 More not recoverable by virtue of 7 Counsel or attorneys not to follow up Act of February 15, 1819—January 1, 1820. R. C. ch. 76. 17 1. § 1. Before any person shall be licensed to practice as counsel or attorney at law, in any of the courts of this commonwealth, he shall produce, to those hereby authorized to grant licenses, a certificate from the court of that county or corporation,' where he hath usually resided for the last preceding twelve months, that he is a person of honest demeanour, and is upwards of twenty-one years of age; and three of the judges of the superior courts, upon such certificate being produced to them, may, and they are hereby authorized and empowered to grant to the person producing the same, a license, under their hands and seals, to practice the law in the superior and inferior courts of this commonwealth, if, after examination, they shall be of opinion that he is duly qualified. (a) Oct. 1786, c. 56, 12 Stat. Larg. 339; Âm. at Rev. 1792, c. 71, R. C.* 2. § 2. Every counsel and attorney, before he shall be permitted to practice in any of the courts of this commonwealth, shall first produce his license in each court where he intends to practice, and, in the presence of such court, shall give assurance of fidelity to the commonwealth, and shall moreover take the following oath of office, to wit: 1, A. B. do solemnly swear, that I will honestly demean myself in the practice of the law, as counsel or attorney, and will, in all respects, execute my office, according to the best of my knowledge and abilities. Feb. 1745, c. 7, 5 Stat. Larg. 346; and Ibid.† (a) Counsel and attorneys are the only safe depositories of a client's interests, under the care our law has taken to confide their functions only to men of probity and legal knowledge. Roane, J. in delivering the court's op. in Parker v. Carter et al. 4 Munf. 287. * Attorneys were first licensed by the courts before which they practiced, March 1642, act 61, 1 Stat. Larg. 275; December 1656, act 6, 1 S. L. 419; then by the governor, June 1680, act 6, 2 Stat. Larg. 478; then by examiners appointed by the governor and council, May 1732, c. 13, 4 Stat. Larg, 360; then by examiners appointed by the judges of the general court, February 1745, c. 7, 4 Stat. Larg. 345; October 1748, c. 47, 6 S. L. 140; March 1761, c. 8, 7 S. L. 397; last, by the judges of the high court of chancery, or general court, October 1786, c. 56, 12 Stat. Larg. 339. An attorney's oath, as prescribed by act of May 1732, c. 13, § 9, 4 Stat. Larg. 361, is as followeth: "You shall do no falsehood, nor consent to any to be done in the court; and if you know of any to be done, you shall give notice thereof to the justices of the court, that it may be reformed: You shall delay no man for lucre or malice, nor take any unreasonable fees: You shall not wittingly or willingly sue, or procure to be sued, any false suit, nor give aid nor consent to the same, upon pain of being disabled to practice as an attorney forever. And furthermore, you shall use yourself in the office of an attorney within the court, according to your learning and discretion." If an attorney puts in a false plea to delay Act of February 15, 1819-January 1, 1820. R. C. ch. 76. 3. § 3. If any person shall presume to practice as counsel or attorney, in any of the said courts, without a license first obtained as aforesaid, or without qualifying himself in such court, in the manner before directed, he shall, for every such offence, forfeit and pay the sum of one hundred and fifty dollars, for every cause he shall prosecute or defend, in any of the said courts, one moiety to the use of the informer, and the other moiety to the 'commonwealth, for the' use of the literary fund, to be recovered by action of debt in any court of record. Ibid. 4. § 4. Counsel and attorneys at law, licensed and duly qualified to practice. as such in the respective courts of Pennsylvania, Ohio, Kentucky, Tennessee, the District of Columbia, North Carolina and Maryland, are hereby authorized to practice as such in the several courts of law and equity of this commonwealth, upon producing proper certificates of their qualifications and licenses, and taking the oath of office only. Jan. 29, 1816, c. 44. 5. § 5. Every person that hath already been, or shall hereafter be, convicted of any felonious crime, shall be incapable of obtaining such license; or, if licensed, the judges of any court in which such person may practice, on proof thereof being made to them, may supersede his license. 1792, c. 71, R. C.†† 6. § 6. If the judges of the general court, either in the general court or circuit courts, from their own observation, detect any mal-practice in either of the said courts, in any counsel or attorney of those courts, or either of them; or if a complaint in writing be made to them, of such mal-practice in the said courts, or in the court of any county or corporation, the party accused shall be summoned to shew cause why an information should not be filed against him: And if such information should be ordered, and the counsel or attorney thus offending should be found guilty of the matter therein charged, the said judges, either in the general court or circuit courts, as the case may happen, may either suspend his license during a certain time, or vacate it altogether, as they shall judge most proper. The judges of the court of appeals, and of the superior courts of chancery, shall have the like power over counsel and attorneys practising at the bars of their respective courts; and in case an information should be directed by the judges of either of the said courts, they may cause a jury to be impannelled to try such information, in like manner as informations are tried in the general court, or in the circuit courts: Provided always, That nothing herein contained shall be construed to hinder the justices of any county court, or other inferior courts, from causing any attorney practising in such courts, to find security for his good behaviour, or fining such counsel or attorneys for misdemeanours, or contempts offered to them, in the same manner as if this act had never been made. 1786, c. 56, 12 Stat. Larg. 339; R. C. c. 71. 7. § 7. No counsel or attorney, who shall prosecute any suit in any infe justice, he breaks his oath, and may be fined for putting a deceit upon the court. Pr. Holt, C. J. in Pierce v. Blake, 2 Salk. 515; and made to pay the costs occasioned by such plea. Blewitt v. Morsden, 10 East, 237; Thomas v. Vandermoolen, 2 Barn. & Adolph. 197; Barnley v. Godslake, 2 Barn. & Cress. 199; although it may have been sanctioned or directed by his client. Vincent v. Groome, 1 Chitty's Rep. 182. And see Coke's Com. on 29 c. Westm. 1st, (3 Ed. 1,) 2 Inst. 215. tt See Bank of N. Y. v. Stryker, 1 Wh. C. L. 330 and note; Levi v. Burr's case Cir. Ct. U. States, Dis. of Columbia; May T. 1823, 1 W. C. L. 503, in which the powers of the court over attorneys and counsel are elaborately considered by Cranch, C. J. By the provisions of this stat. a court cannot, for mal-practice of an attorney or counsellor, committed in its presence, suspend the license of the offending party, in a summary way; but must direct an information to be filed against him, and inflict the punishment on the verdict of guilty found on such information. Henry J. Fisher's case, 6 Leigh, 619; see Hawkins, P. C. B. 2, c. 22, § 6, &c., and cases cited in preceding note. Act of February 15, 1819-January 1, 1820. R. C. ch. 76. be rior court, in which an appeal may be prayed, shall be permitted to appear, or prosecute such appeal in any superior court, to which the same may carried or removed; and any counsel or attorney who shall appear to, or prosecute such appeal in any superior court, shall forfeit the sum of sixty dollars, to be recovered with costs by action of debt, in any court of record within this commonwealth. The whole penalty shall be appropriated to him who will sue for and recover the same. 1788, c. 50; 12 Stat. Larg. 708; c. 71, R. C. 8. 12. If any attorney, or other person practising as an attorney, shall presume to appear under any power of attorney, made before action brought for confessing or suffering judgment to pass by default or otherwise, for any defendant in any court of record within this commonwealth, such attorney shall, for every such offence, forfeit and pay fifteen hundred dollars, to such defendant for his own use, to be recovered, with costs, by action of debt or information, in any court of record; and, moreover, shall be liable to an action for damages, at the suit of the party grieved. Sept. 1744, c. 11, § 5, 5 Stat. Larg. 240; Oct. 1748, c. 8, 5 Stat. Larg. 511; R. C. c. 71. 9. § 10. In all cases where the sheriff is authorized by law, to take the engagement of an attorney endorsed upon the writ, that he, such attorney, will appear for the defendant or defendants, every attorney thus entering into such engagement, who shall fail to enter an appearance agreeably thereto, shall forfeit to the defendant or defendants, eight dollars, for which, judgment shall be immediately entered, and execution may issue thereon. 1788, c. 71, R. C. 10. 8. If any suit shall be dismissed for the non-attendance of an attorney practising either in the superior or inferior courts, not having a just and reasonable excuse, it shall be at his costs, and he shall moreover be liable for all damages his client shall sustain by such dismission, or any other neglect of his duty,(b) to be recovered in any court of record within this commonwealth. 1787, c. 71, R. C. 11. 11. The judges of the general court, of the circuit courts, and the justices of the county or other inferior courts, shall not suffer, in suits hereafter to be commenced, more than two attorneys to argue on any one side, except in criminal cases, unless good cause be shewn for departing from this regulation.(2) Mar. 1761, c. 8, 7 Stat. Larg. 400; 1792, c. 71, R. C. 12. 19. The lawyers practising in any court, shall be allowed at all times. freely to inspect the papers and records of such court, without being constrained to take copies thereof. Jan. 31—July 1, 1805, c. 61, ed. 1808. 13. § 9. Every attorney receiving money for his client, and refusing to pay the same when demanded,(1) shall be proceeded against in a summary way, on (b) It is undoubtedly true, that an attorney is liable for neglect of duty; and that he is bound to make retribution to his client for the injury which he may thereby sustain. Carrington, J. in Stephens v. White, 2 Wash. 211. But, to make an attorney liable upon a charge of this sort, gross negligence should be proved. Lyons, J. in S. C. p. 212. See Russel v. Palmer, 2 Wilson, 325; Pitt v. Yalden, 4 Burr. 2060; Gilbert v. Williams, 8 Mass. R. 51; Godfrey v. Jay, 7 Bing. 413. An attorney at law is employed to collect debts, and some of them are lost to his client through his negligence: Held, the attorney is chargeable for the principal of the debts so lost, but not with interest thereon. Rootes v. Stone, 2 Leigh, 650. (2) As to the right to be heard by counsel, see Word's case, 3 Leigh, 743. (1) On general principles, an attorney is not liable to a suit for money collected for another, till demand made, or directions to remit. He is not in default, till he receives directions from his principal. Taylor v. Bates, 5 Cowen, 376; Rathbun v. Ingalls, 7 Wend. 320. For what will supersede the necessity of proof of demand and refusal, see Taylor v. Armistead, 3 Call, 200. A. having claims in the hands of an attorney for collection, gives him a verbal direction to pay part of the money when collected to B. in satisfaction of a debt due B. from a third person: Held, A. in his lifetime, or his adm'r after his death, may re |