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Act of February 15, 1819—January 1, 1820. R. C. ch. 76.

notice, before any court of record, in the same manner as sheriffs are liable to be proceeded against for money received on executions; (c) and 'damages in lieu of interest, not exceeding fifteen per centum per annum, from the time of receiving such money, until it shall be paid, may be awarded on the principal sum recovered.' 1787, c. 71, R. C.

14. 13. No justice of the peace, sheriff, under-sheriff, or clerk of any county court, (d) shall appear or plead as attorney, for any person or persons whatsoever, in the court of the county whereof he is a member, officer or clerk; except only as general attorney for any person or persons, not residing or being within this commonwealth; under penalty of being fined by such court in the sum of thirty dollars for every such offence, to the use of the commonwealth for the benefit of the literary fund. Oct. 1646, act 10, 1 Stat. Larg. 330; Mar. 1653-9, act 17, Ib. 523; Mar. 1661-2, act. 49, 2 Stat. Larg. 81; 1788, c. 4; R. C. c. 71.

15. § 18. Attorneys to prosecute on behalf of the commonwealth, shall be appointed in the county or corporation courts of this commonwealth, by an order of the said courts respectively; (2) which said attorneys shall be entitled to recover of delinquents, the fees allowed by law, and shall be allowed by the said courts, a reasonable sum for those public services, for which no other fee or reward is allowed by law; which sum shall be annually levied by such court on the county or corporation and it shall not be lawful for the auditor of public accounts, to allow the claim of any attorney for any county or corporation court, for any services to be performed by him therein. Jan. 25, 1800, c. 260, R. C.

16. § 14. The lawyers of this commonwealth shall not demand, nor directly or indirectly, or by any device, way, or means whatsoever, take or receive, before the suit or suits, they are or shall be employed in, shall be finally de

voke this direction to the attorney and demand the money. Beers &c. v. Spooner et al. 9 Leigh, 153.

(c) The law, anterior to Rev. 1819, did not authorize the recovery of damages against the attorney: "in the same manner "related to the notice and mode of conducting the cause, merely. Taylor v. Armstead, 3 Call, 200.

Where an execution is delivered to the sheriff of a county other than that in which the creditor resides, and the creditor employs an attorney at law, practising in the sheriff's county, to collect the money, without, however, giving the attorney a written order, and then the attorney makes a demand of the money from the sheriff, such demand, if no objection be made at the time to the authority of the attorney to receive the money, is, notwithstanding the statute, 1 Rev. Code, c. 134, § 54, a sufficient demand to justify a judgment against the sheriff. Chapman v. Cheris, 9 Leigh, 297. (d) A clerk of a superior court of law, ought not to be permitted to qualify as counsel or attorney, nor to practice as such, in the court of which he is clerk, the duties of the two characters being incompatible with each other, and therefore, according to the common law of the land, their union should not be permitted. Ex parte R. W. Collins, general court, Nov. T. 1820, 2 Virg. Cas. 222.

Ex

(2) The tenure of the prosecutor's office both in the county and superior courts, is the pleasure of their respective courts. parte Louis C. Bouldin, gen'l court, June T. 1836, 6 Leigh, 639.

By act of April 16, 1831, Sup. R. C. c. 109, § 57, p. 157; Ses. Acts 1830-31, c. 11, § 57, the circuit superior courts of law and chancery are empowered to appoint attorneys to prosecute for the commonwealth in their courts, and to allow them such compensation for their services, as they shall deem reasonable, not exceeding one hundred dollars per annum, for the court of one county, the allowance to be certified by the court and paid out of the public treasury.

Section 58 provides for taxing in the bills of costs the attorney's fees in prosecutions for misdemeanors, and in other prosecutions for the commonwealth. Section 59 provides that no attorney for the commonwealth in any circuit superior court shall be at liberty to resign his appointment without the leave of the court, unless he shall have given to the judge of the court, in which he shall be attorney, at least thirty days notice of his intention to resign.

Duty of commonwealth's attorney in the circuit superior courts to defend the commonwealth's interest in suits brought to impeach devises to colleges, academies and schools. See act of April 2, 1839, c. 12, p. 12.

Act of February 15, 1819—January 1, 1820. R. C. ch. 76.

termined, any greater or other fees or rewards, for the following services, than what are herein particularly mentioned and expressed, that is to say :* lawyers practising in the general court, may demand and receive for an opinion or advice, where no suit is, or shall be brought and prosecuted, or defended, by the attorney giving such advice, but not otherwise, three dollars and fiftyeight cents; and in any suit other than where the title or bounds of land shall or may come in question, eight dollars and thirty-three cents; in those cases where the title or bounds of lands, shall or may come in question, sixteen dollars and sixty-six cents; in any suit in chancery, sixteen dollars and sixty-six cents; in any suit in a superior court of law, where the title or bounds of land, shall or may come in question, five dollars; and in all other cases, two dollars and fifty cents and lawyers practising in the county courts, or other inferior courts, for services to be by them done in such courts, may demand, for an opinion or advice, where no suit is or shall be brought or prosecuted, or defended, by the attorney giving such advice, but not otherwise, one dollar and sixty-seven cents; and in any suit at common law, other than the actions hereafter mentioned, two dollars and fifty cents; in all chancery suits, or real, mixed or personal actions, where the title or bounds of land shall or may come in question, five dollars; on an appeal to a county or corporation court, from the judgment of a magistrate, one dollar and twenty-five cents; and any lawyer, for attending a survey in the country, for every day he shall attend, may demand three dollars and fifty-eight cents; which last mentioned fee, may be taxed in the bill of costs. And every lawyer exacting, taking, receiving or demanding any greater fee, or other reward, for any of the above services, before he has performed the said services, or finished the said suits, shall forfeit and pay one hundred and fifty dollars for every offence; one half to the commonwealth, for the use of the literary fund, and the other half to the informer, to be recovered by action of debt or information, in any court of record within this commonwealth. See Mar. 1642, act 59, 1 Stat. Larg. 275; Nov. 1645, act 7, Ib. 302; Nov. 1647, act 15, Ib. 349; Mar. 1657-8, act 112, Ib. 482; June 1680, 2 Stat. Larg. 478; May 1742, c. 13, 5 Stat. Larg. 181; Mar. 1761, c. 8, 7 Stat. Larg. 400; R. C. c. 71.

17. § 15. No lawyer in any suit to be brought for his fees or services, shall recover more than the fees above mentioned, (e) notwithstanding any agreement,

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§ 2. That so much of the act passed on the fifteenth day of February, eighteen hundred and nineteen, as forbids counsel or attorneys at law to receive higher fees than those allowed by law, shall be and the same is hereby repealed, and in future it shall be lawful for counsel and attorneys at law to make contracts for fees with their clients, and every contract thus entered into by them shall be as binding and obligatory upon the parties to it as any other contract, and may in like manner be enforced.

(e) The term lawyer, I presume, includes counsel as well as attorneys: indeed, these

terms seem to be used throughout this act, to convey the same idea. In Virginia the functions of attorney, solicitor, proctor, counsel and advocate, are united in the same person, (see the argument of Mr. Leigh in ex parte Leigh, 1 Munf. 468-478) who is termed a lawyer.

According to the common law of England, neither a counsel, nor advocate, can maintain an action for services rendered to his client. 3 Black. Com. 28; Moor v. Row, 1 Ch. Rep. 38; Thornhill v. Evans, 2 Atk. 332. "It is their duty to demand and receive their fees, at the time their briefs are delivered, and therefore it is, that the law affords them no action to recover them. 'Tis entirely a mistake to suppose, (if any one can be so ignorant or stupid as to suppose at all on the subject,) that a counsel or advocate is to act for nothing. The courts of Westminster Hall have been in the constant habit for centuries of allowing to plaintiffs, when they succeed, the fees of counsel on the one hand, and to defendants the fees

Act of February 15, 1819-January 1, 1820. R. C. ch. 76.

contract or obligation, made or entered into by the party against whom such suit shall be brought, if such agreement, contract or obligation shall have been entered into, before the suit or suits in which such fees shall have accrued, or services been rendered, were finally determined.' Ibid.

18. § 16. The clerk of the court of appeals, shall tax in the bill of costs, on all judgments and decrees rendered in that court, a fee of twenty dollars. Dec. 7, 1816, c. 12.

19. § 17. The clerks of the high court of [superior courts of] chancery and general court, respectively, shall tax in the bill of costs, on all decrees obtained in the former, and on all judgments in the latter, in any action wherein the title or bounds of land shall or may come in question, a fee of sixteen dollars and sixty-six cents; and in all other cases in the said last mentioned court, the clerk shall tax a fee of eight dollars and thirty-three cents, where the party obtaining such decree or judgment, employed a lawyer; except where the plaintiff may not recover more costs than damages; and the clerks of the respective superior courts of law, and county courts, or other inferior courts, shall tax in the bill of costs in all judgments in any action where the title or bounds of land shall or may come in question, and on all decrees in chancery, either when the plaintiff shall recover, or be non-suited, or where his suit shall be dismissed, five dollars, and in all other actions or suits, except appeals from the judgment of a magistrate, to the county or other inferior courts, two dollars and fifty cents, for an attorney's fee, if the party employed one; except where the plaintiff may not recover more costs than damages and in all appeals from the judgment of a magistrate, the clerks of the said county, and other inferior courts, shall tax in the bill of costs, where any attorney shall be employed, one dollar and twenty-five cents, as an attorney's fee, against the party who shall be cast. From Oct. 1765, c. 52, 8 Stat. Larg. 184; 1792, c. 71, R. C.; 1806, c. 7; 1813, c. 13.

[LETTERS OF ATTORNEY, &c. how proved. See tit. CONVEYANCES, No. 29.]

of their counsel when they succeed, on the other hand. This is the invariable rule acted upon on the taxation of costs." See the case of Morris v. Hunt, 1 Chitty's R., K. B. 544, 550-555.

A suit cannot be sustained for compensa

A party is bound by the consent of his counsel given in court, though he had no instructions to consent, if he were at the times apprised of all those facts, of which the knowledge was essential to the proper exercise of his discretion; but he will be relieved from an order made by such consent, if given in ignorance of material circumstances. Furnival v. Bogle et al. 4 Russel, 142.

An attorney at law only represents the plaintiff or defendant in court, to do such acts as the plaintiff or defendant, if in court, might do himself; he has no right to enter into private, executory or collateral matters respecting parties not before the court. See Herbert v. Alexander, 2 Call, 498. He, merely as such, has, strictly speaking, no right to make a compromise for his client. Holker v. Parker, 7 Čranch, 452, though he may refer the cause to arbitrators; ib. p.

tion for services, beyond the fee allowed by
act of assembly. Mooney v. Lloyd, 5 Serg.
& Raw. 412. But see Gray v. Bracken-
ridge et al. (1830) 2 Pennsyl. Rep. 75.
See ante, preceding note *.

449; and see Buckland v. Conway, 16 Mass. R. 396.

But he cannot discharge a debtor from execution on payment of less, than the sum due. Lewis, adm'x v. Gamage et al. 1 Pick. 347.

Nor has he a right to receive a bond from the debtor in discharge of his client's claim. If he does, he abandons his client, and becomes the agent of the debtor, leaving the plaintiff full liberty to proceed against the defendant. Smock v. L. T. Dade, 5 Rand. 639; and Wilkinson & Co. v. Holloway, 7 Leigh, 277. He has no authority to accept any thing but money in satisfaction, and if he discounts from the debt which he is employed to collect, a debt he, himself, owes the debtor, and for the balance takes from the debtor an assignment of a bond of another, the creditor will not be bound by such an arrangement.

The general authority of an attorney does

not cease with the entry of a judgment. He has, at least, a right to issue an execution; though he may not have the right to discharge such execution, without receiving satisfaction. The Union Bank of G. Town v. Geary, 5 Peters's R. 99; see Windrum v. Parker et al. 2 Leigh, 361.

How far a warrant of attorney, or other authority, must be shewn, to enable an attorney to prosecute a suit. See Osborn v. The U. S Bank, 9 Wheat. 829; Marshall, C. J. in delivering the opinion of the court, (p. 830,) that "the power must indeed exist, but its production has not been considered as indispensable, certain gentlemen, first licensed by government, are admitted by order of court, to stand at the bar, with a general capacity to represent all the suitors in the court. The appearance of any one of these gentlemen in a cause, has always been received as evidence of his authority; and no additional evidence, so far as we are informed, has ever been required. This practice, we believe, has existed from the first establishment of our courts, and no departure from it has been made in those of any state, or of the Union." "This rule of permitting gentlemen to appear without producing a warrant of attorney, is as applicable to their appearance for a corporation, as for a natural person." "This rule applies to courts of chancery as well as to courts of law." See Howard v. Rawson & al. 2 Leigh, 735, gen. court; see Owen v. Ord, 3 Car. & Payne, 349, Cor. Ld. Tenterden, C. J.

According to the custom of Virginia, the attorney on record has a right to receive the money recovered, especially if he has custody of the instrument on which the demand is founded; although under special circumstances, as if notice were given by plaintiff to defendant not to pay the amount to plaintiff's attorney, &c., the implied authority would be rebutted. Hudson v. Johnson, 1 Wash. 10; Branch v. Burnley et al. 1 Call,

147.

The lapse of a year and a day after judg ment recovered, will not operate a revocation: a receipt given by the attorney after that period, will discharge the judgment. Branch v. Burnley, 1 Call, 147; and see Wycoff v. Bergen, 1 Coxe's N. J. R. 214.

This court understands it to be the settled rule of law, that counsel and attorneys [and interpreters acting as the organ of communication between client and attorney] ought not to be permitted to give evidence of facts imparted to them by their clients, when acting in their professional character; that they are considered as identified with their clients, and, of necessity, entrusted with their secrets, which, therefore, without a dangerous breach of confidence, cannot be revealed; that this obligation of secrecy continues always, and is the privilege of the client, and not of the attorney; that it extends to all cases in which a client applies to his counsel or attorney, for his aid in the

line of his profession, whether the application be on the subject of pending suits, or suits in contemplation. Parker v. Carter et al. 4 Munf. 273, 286; Greenough v. Gaskill, 1 Mylne & Keene, 98; 1 Coop. Sel. Cas. 96, S. C.; and see Moore v. Terrell, 4 Barn. & Adolp. 870; Doe d. Shellard v. Harris, 5 Carr. & Payne, 592; Mynn v. Joliffe, 1 Moody & Robinson, 326; Sawyer v. Birchmore, 3 Mylne & Keene, 572.

Defendant, an attorney, being employed to raise money on mortgage for plaintiff, disclosed to the proposed lender certain defects in plaintiff's title, per quod plaintiff was subjected to divers actions at the suit of the proposed lender, was delayed in obtaining the money he wanted, and compelled to give a higher rate of interest: Held, that this was a breach of duty, for which an action lay against defendant, notwithstanding he had been the attorney of the proposed lender before his retainer by plaintiff. Taylor v. Blackson, 3 Bing. N. C. 235; Com. Dig. action on the case for Deceit, A. 5; and Doe dem. Peter v. Watkins, 3 Bing. N. C. 421.

An attorney, employed as such, to draw a conveyance, is acting in the line of his profession, and therefore, bound to conceal the facts disclosed to him, by the person employing him. Parker v. Carter et al. 4 Munf. 273, 285, and Clay v. Williams, 2 Munf. 122, Roane, J. And, though the attorney should decline the employment on account of the applicant's wishing a fraudulent object effected by the conveyance, the attorney can never disclose such confidential communications. Cromack v. Heathcote, Esq. [C. P. 1820] 2 Brod. & Bing. 4; Bramwell v. Lucas, 2 Barn. & Cress. 745; Walker v. Wildman, 6 Madd. R. 47; see Williams v. Mundie, 1 Carr. & Payne, 158; and Broad v. Pitt, 3 Carr. & Payne, 518; 1 Moo. & Malk. 233, S. C.; Ld. Tenterden, in the former and Ld. C. J. Best, in the latter, differing with the C. B. in the case of Cromack v. Heathcote.

This rule is confined to the description of Cir. Ct. U. S. Penn. would not extend it to persons abovementioned, 4 Munf. 287. The a student in the lawyer's office, the reasons of the rule not applying; there being no nehim, and the court were not inclined to excessity that confidence should be reposed in tend the rule. Andrews et al. v. Solomon et al. 1 Peters's R. 359.

In the state of New York, by the Rev. only excused, but prohibited, as a witness, Statutes, (2 R. S. 406,) a physician is not from disclosing information which he has acquired in attending a patient in a professional character, and which information was such patient. And see Johnson v. Johnson, necessary to enable him to prescribe for 4 Paige, 460, 468.

On the principle, which governed the cases last noticed, it was decided in the case of Earl Cholmondeley et al. v. Ld. Clinton et al. by Ld. Ch. Eldon, (February 1815,) and

in conformity with the opinions of the courts of K. B. and C. P. and Exchequer, and the Vice Chancellor's court, that a solicitor, or an attorney, who had been employed as such, on one side, could not become the solicitor or attorney for the opposite party. This was not a case of a discharged solicitor. But does not the same principle apply, even if an attorney is discharged? "Can it be, that his having been so discharged by one party, shall be the very reason why the

other party shall employ him?" Per Ld. Ch. p. 88. Cooper's Ch. Cas. 80-89; 19 Ves. jun. 260, S. C.; see Baylis v. Grout, 2 Mylne & Keene, 316.

ATTORNEY GENERAL.

See act to define the duties and regulate the fees of the attorney general, passed March 23, 1836; Ses. Acts 1835-6, c. 43, p. 33.

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Act of March 6, 1819-January 1, 1820. R. C. ch. 191.

1. § 1. All male persons, of the age of sixteen years and upwards, and all female slaves of the age of sixteen years and upwards, shall be and they are hereby declared to be tithable, and chargeable for defraying the county levies and poor rates; [March 1642-3, act 1, 1 Stat. Larg. 242; Oct. 1673, 2 Stat. Larg. 310;] except such only as the county courts may, by reason of age, infirmity, or other charitable reasons, exempt from the payment of public taxes. Oct. 1748, c. 21, 6 Stat. Larg. 40; Feb. 1644-5, act 8, 1 Stat. Larg. 292 ; Oct. 1649, act 2, Ib. 361; March 1657-8, act 46, lb. 454; June 1680, act 7, 2 Stat. Larg. 480; Oct. 1705, act 7, 3 Stat. Larg. 258; May 1723, c. 4, § 21, 4 Stat. Larg. 133; Oct. 1787, c. 43, 12 Stat. Larg. 517; 1792, c. 134, R. C.

2. § 2. The commissioners of the tax within the several counties of this commonwealth, shall, and they are hereby required and empowered, at the same period in each year, in which they are collecting lists of the taxable property in their respective districts, to demand from each person, being tithable, or having, in his or her possession, such as are tithable, a written list of all such as are tithable persons in his or her family; which list the said commissioners, respectively, shall arrange in an alphabetical table, and, on or before the last day of May annually, together with the vouchers taken by them as aforesaid, return to the clerks of the courts. 1792, c. 134, R. C.

3. § 3. The clerks of the several county courts shall at their next court after the table containing the list of tithables as aforesaid shall be returned to them, set up in the courthouse of their county, fair copies of such tables. Ibid.

4. § 4. The master or owner of a family, or, in his or her absence, or nonresidence at the plantation, his or her agent, attorney or overseer, shall, at the time appointed by this act, in a list under his or her hand, deliver, or cause to be delivered, to the commissioner of the tax for that district, the names and numbers of all tithables abiding in, or belonging to, his or her family, the last day of January preceding the time of delivering in such list; or the master

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