20 Me. 183 | Me. | 1841
The opinion of the Court was by
The deputy of the defendant having been released by him was a competent witness. Turner v. Austin,
The principal question in the case is, whether the attorneys of the plaintiffs, without any special authority therefor, might approve of the receipt taken by the officer, and thereby relieve him, from his obligation to retain and produce the property, that it might be taken in execution. The practice of law in this country, and especially in this part of it, is in several respects peculiar to our institutions and laws, and differs essentially from the English practice. With us no warrant of attorney is required. Osborne v. The Bank of the United States, 9 Wheat. 738. The duties of barrister and attorney are united. The extent of the authority cannot therefore be determined by any written evidence of it, but must be sought in the nature of the business to be performed. Our laws authorizing an attachment and seizure of the debtor’s property before judgment have given an additional remedy for the security and recovery of debts. In making use of it the attorney of the creditor must exercise such authority as will enable him
' It has been decided, that an attorney has authority to receive payment and to discharge the debt. Fowler v. Shearer, 7 Mass. R. 23; Jackson v. Bartlett, 8 Johns. 367. And if he should state to the officer, who had made an attachment, that he had received payment of the debt, or that the plaintiff liad settled the suit, and that he might return the goods to the debtor, if the officer should obey and tire statement should prove to be incorrect, the officer must be accountable for the whole property, unless the right to control the attachment be admitted. And under such a practice denying the attorney’s authority to discharge the attachment, the officer must detain the property until an order could be obtained from the plaintiff, howmver distant, subjecting himself or the plaintiff to damages for a detention of the property after the debt had been paid.
- The attorney may discharge an attachment by filing a new count, apparently not for the same cause of action. Fairfield v. Baldwin, 12 Pick. 388. And by entering a discontinuance or nonsuit. Gaillard v. Smart, 6 Cow. 385. And it is not perceived what security it can afford the client, or what principle of law it can preserve, to deny the power to do that directly, which it is admitted may be done indirectly. In the last case, it is said, “ his general power does not extend to a retraxit, or release, because they relate to the cause of action itself; not merely to the remedy, which he is retained to conduct.” And here is disclosed the true principle relative to the extent and limitation of the power of an attorney. He may elect and control the remedy, and all the arrangements arising out of and connected with it, but cannot release or discharge the cause of action without receiving payment, or do any thing
The principle involved in the decision of the case of Reece v. Righy, 4 B. & A. 202, would require the most vigilant attention to all the circumstances connected with the remedy. It was there held, that an attorney was guilty of negligence by suffering the cause to be called on for trial without having previously ascertained, that all the plaintiff’s witnesses were present. It was decided, in the case of the Union Bank of Georgetown v. Geary, 5 Pet. 99, to be within the scope of an attorney’s authority conducting the suit, to agree to postpone execution on a judgment against the indorser, and to issue it immediately against the maker. It has been stated in the cases of Tipping v. Johnson, 2 B. & P. 357, and of Jackson v. Bartlett, 8 Johns. 367, that the authority of an attorney determines with the judgment.” And in 1 Rol. Abr. 291, Morton’s case, 2 Show. 139, and 2 Inst. 378, have been relied on as authority for this assertion. In Russell v. Palmer, 2 Wilson, 325, it was however decided, that an attorney was guilty of negligence in omitting to charge in execution, within
And a somewhat similar exercise of authority over the execution was admitted in Kellogg v. Griffin, 17 Johns. 274. In Brackett v. Norton, 4 Conn. R. 517, it was decided, that the attorney may give directions concerning the levy of the execution-. And in that case it is said, “ when a note is sent for collection from a creditor in one State to an attorney in another, by the reception to collect, the latter assumes the duty of performing the measures requisite for the purpose with integrity, diligence and skill.” In the case of Lynch v. The Commonwealth, 16 S. & R. 368, it is said, “ the attorney is in some degree the agent as well as the lawyer of the plaintiff; when execution has issued, he often gives time to the defendant, and directs the sheriff to postpone a sale advertised, and so far as I know, this has always been taken as a justification to the sheriff for not selling. Such discretionary powers are necessesary for the plaintiff’s interest; without the exercise of them many times and under many circumstances property sufficient to pay the debt would not sell for enough to pay the costs.” “If a plaintiff wishes his attorney to have less power, than is usually exercised, it would seem more consonant to right to give him in writing a special and limited authority, than to bring the law of another country and say in opposition to constant and general understanding that the power of his attorney is to be judged of by that law.” “ In the present case, if the attorney had told the
In Jackson v. Bartlett, 8 Johns. 361, it was denied, that the plaintiff’s attorney had authority to discharge the defendant from an arrest on the execution, before the money was paid. The ground of the decision was, that it discharged the debt, which he could not do without satisfaction. To the same effect is the case of Kellogg v. Gilbert, 10 Johns. 220, where however it is said, that “ in the progress and until the consummation of the judgment the attorney has, no doubt, and ought to have, a large and liberal discretion.” In the case of Iveson v. Conington, 1 B. & C. 160, the attorneys of the parties agreed, that the record in the suit should be withdrawn, that the defendant should take back the horse named in the suit and pay an agreed sum to the plaintiff who should pay costs to the defendant; and the Court said, that the plaintiff was not bound by that agreement. It will be perceived, that the attorney not only undertook to discharge the plaintiff’s claim by a compromise, but to make him part with his property in the horse. In Beardsley v. Root, 11 Johns. 465, it was decided, that the attorney of the plaintiff had no authority to purchase for his client property sold on the execution. And in Lewis v. Gamage, 1 Pick. 346, that he could not discharge
There has been no- decided case claiming perhaps a more extensive authority and a larger discretion for attorneys in matters relating to the remedy, than the case of Gordon v. Coolidge, 1 Sum. 537, And whthe it may justly claim more deference from the consideration, that Mr. Justice Story, who in his treatise on Agency has so thoroughly examined the principles and decided cases, delivered the opinion; it may be doubted whether in some respects it does not, if it be correctly understood, give a more enlarged authority to the attorney, than will be found authorized by any decided case. The facts bearing on this point, as there stated, are in substance; that Messrs McGaw & Hatch, attorneys at law in Bangor, previous to the month of October, 1831, received from Loring and Kupfer, and from Bradley and Sigourney, all of Boston, demands against the defendant for collection, On the fourth day of that month writs were made upon these two demands and delivered to an officer to be. served when necessary. On the following day these attorneys were requested to obtain security for a demand of Gilman, Pritchard & Co., against the defendant. To accomplish this, an assignment of his stock of goods was made