| Superior Court of New Hampshire | Jul 15, 1842
The only question arising upon this case is, whether an attorney, who is employed to collect a note, by virtue of the employment alone is clothed -with authority to indorse the note which he is employed to collect, so as to enable a nominal party to maintain an action against the maker.
The extent of the authority incident to the office of an attorney, is a subject which has often come under the consideration of courts, under widely differing circumstances, and has been much discussed. An attorney who is employed to prosecute or defend an action, is a special agent. His authority is bounded and limited by the necessities of the case. He is clothed only with the power requisite to the accomplishment of the purposes of his employment. And no doubt exists that to that extent he is clothed with authority by implication of law from the employment itself.
In Miner vs. Smith, 6 N. H. Rep. 220, it is said, that “ an attorney, having authority to commence an action in the name of any individual, is authorized to place the name of that individual upon the writ as indorser.” And in Pettingill vs. McGregor, 12 N. H. Rep. 193, it is said, that in a case in which the party can properly, in conformity with the provisions of law, bind himself, and it is necessary, for the purposes of the action, that an obligation should be entered into, connected with the suit and as a part of it, in its regular course, such obligation, when entered into by the attorney in behalf of the client, binds the client.
But no case is found, pushing the limits of the authority beyond the limit of a reasonable necessity, or beyond the performance of acts touching the action and the proceedings connected therewith.
In the case of the York Bank vs. Appleton, 17 Maine Rep. 55, it was decided that an attorney of record, in a suit, against the maker of a note, has no authority, from his employment as attorney, to execute a valid release to an indorser of the same note, to render him a competent witness in the suit. Mr. Chief Justice Weston in that case remarks :
In Lewis vs. Gamage, 1 Pick. 351, the court say: “ No doubt an attorney has a right to prosecute a suit to final judgment and execution, and to receive the money for which the judgment is recovered; but we are of opinion that he has not a right to discharge the debtor, upon receiving a less sum.” See, also, Langdon vs. Potter, 13 Mass. R. 319.
In Union Bank of Georgetown vs. Geary, 5 Peters’ R. 113, it is said, that “the general authority of the attorney does not cease with the entry of the judgment. lie has at least a right to issue an execution, although he may not have the right to discharge such execution without receiving satisfaction. His suit does not terminate with the judgment. Proceedings in the execution are proceedings in the suit.”
An attorney, who has become such of record, has power to refer the action in which he is employed by a rule of court, that being a legal method of prosecuting the suit. Buckland vs. Conway, 16 Mass. R. 396.
In Penniman vs. Patchin, 5 Vermont R. 346, it was decided that an attorney has no authority to assign a demand entrusted to him for collection. In the opinion of the court in that case, it is said, that an attorney “ is not authorized to make any disposition of the demand, or exercise any authority over it, which is not necessarily involved in the discharge of his duty. Hence, he cannot compromise a demand without special authority for that purpose, nor discharge it without satisfaction; much less can lie assign it for his own benefit, such an act being not only foreign to the purpose of his employment, but inconsistent with it. A power, so liable to abuse, can with no propriety be admitted.”
From the decided cases, it is readily perceived that the act of an attorney employed to collect a demand or prosecute or defend an action, in order that the same may be regarded as authorized by implication from the mere fact of the employment, must be connected with and be a part of the proceedings proper in the collection of the demand, or the prosecution or defence of the action.
Perhaps it may be stated, as a general rule, that whatever a party can properly do, and which is necessary to be done in order to the proper commencement of an action, and the prosecution of the same to its legitimate results, in due course of law, and is part and parcel of the proceedings in the action, an attorney, employed to conduct the action, is also authorized by the employment to do. Beyond that, no authority can be properly implied from the employment alone. By no fair intendment can the power conferred be held to extend beyond that limit.
A just application of these principles to the facts of the case under consideration, admits of no doubt as to the proper decision of the question raised by it. The indorsement of the note was an act altogether aside from, and was an unnecessary preliminary to the commencement or prosecution of the action, to enforce the payment of the note. It was not an^act essential to its proper commencement or necessary to facilitate its proper prosecution. It in fact formed no part of the legal and ordinary proceedings in the suit. No special authority was given for the exercise of the power assumed by the attorney. The action might well have been brought in the name of the payee. At any rate, it is sufficient that the indorsement of the note formed no part of the proceedings in the action, to the management of which the employment had relation, but was a proceeding altogether foreign
Judgment for the defendant.