Attendance of Witnesses.-Attorney at Law. been regularly served with a subpoena. Those who hold a judicial station will be more strictly proceeded against, if they are in default. The United States v. Caldwell, 2 Dall. 333. 2. The privilege of a witness from arrest, when attending the court, exists as well while he is actually in attendance on the court, as to a reasonable time to prepare for his departure, and to his return home. But it does not extend to protect him after he has been examined, during the whole time of the court, nor while he is attending to his private concerns after he has been discharged from the duties imposed on him by the subpoena. Smythe v. Banks. C. C. U. S. of Pennsylvania. 4 Ďall. 329. 3. A member of the congress of the United States may be served with a subpoena, and the court will not apply to congress to allow his attendance as a witness. United States v. Cooper. C. C. U. S. of Pennsylvania. 4 Dall. 341. 4. The court before which a witness is attending under a subpoena, may discharge the witness who has been arrested under the process of another court. C. C. U. S. of Pennsylvania. 4 Dall. 387. 5. A person who had come from a distance in obedience to a subpoena from the circuit court, and was attending said court, was arrested under process from another court, in a street in the city of Philadelphia. He was discharged from the arrest by the circuit court. C. C. U. S. of Pennsylvania. 4 Dall. 387. the judicial courts of the United States," which relate to the taking of depositions of witnesses, whose testimony shall be necessary in any civil cause depending in any district in the courts of the United States, who reside at a greater dis tance than one hundred miles from the place of trial, are not confined to depositions taken within the district where the court is held. Ibid. 10. In all cases where, under the authority of the act of congress, a deposition of a witness is taken de bene esse, except where the witness lives at a greater distance from the place of trial than one hundred miles, it is incumbent on the party for whom the deposition is taken, to show that the disability of the witness to attend continues; the disability being supposed temporary, and the only impediment to a compulsory attendance. The act declares expressly, that unless this disability shall be made to appear on the trial, such deposition shall not be admitted or used on the trial. This inhibition does not extend to the deposition of a witness living at a greater distance from the place of trial than one hundred miles, he being considered beyond a compulsory attendance. Ibid. 11. The deposition of a witness living beyond one hundred miles from the place of trial, may not always be absolute; for the party against whom it is to be used may prove the witness has removed within the reach of a subpoena, after the deposition was taken; and if that fact was known to the party, he would be bound to 6. It is not a sufficient reason for taking the procure his personal attendance. The burthen deposition of a witness, and to waive his attend-of proving this would rest upon the party opposance at court to be examined, that the person is a seaman in a gunboat belonging to the United States, subject to be ordered to proceed to another place, and may not, therefore, be able to attend when the court shall be in session; a commission should be asked from the court in such a case. The Samuel, 1 Wheat. 9; 3 Cond. Rep. 466. 7. A witness, whose deposition has been taken de bene esse, must be proved to have been served with a subpoena, and to be unable to attend the court. Unless he is so old, and so infirm generally, that his attendance at court could not be expected, the age of sixty-five years is not sufficient to dispense with his presence. Lessee of Banert and Wife v. Day, 3 Wash. C. C. R. 243. Lessee of Brown v. Galloway, 1 Peters' C. C. R. 291. ing the admission of the deposition in evidence. For a witness whose deposition is taken under such circumstances, it is not necessary to issue a subpoena. It would be a useless act, the witness could not be compelled to attend personally. Ibid. 12. By the act of 2d March, 1793, subpœnas for witnesses may run into districts other than where the court is sitting, provided the witness does not live at a greater distance than one hundred miles from the place of holding the court. Ibid. ATTORNEY. 1. Attorney at law 1. Attorney at Law. ..Page 199 202 1. An attorney at law, as such, has authority to submit the cause to arbitration. But an attorney at law, merely as such, has no right, strictly speaking, to make a compromise for his client. Holker et al. v. Parker, 7 Cranch, 436; 2 Cond. 8. In the caption of a deposition taken before the mayor of Norfolk, to be used in a cause depending, and afterwards tried in the circuit court of the United States, held in Baltimore, the mayor stated the witness "to be a resident in Norfolk;" and in his certificate he states that the reason for taking the deposition is, "that the witness lives at a greater distance than one hun-Rep. 506. dred miles from the place of trial, to wit, in the borough of Norfolk." It was sufficiently shown by this certificate, at least prima facie, that the witness lived at a greater distance than one hundred miles from the place of trial. The Patapsco Ins. Co. v. Southgate et al., 5 Peters, 604. 9. The provisions of the thirteenth section of the act of congress, entitled "an act to establish 2. Although an attorney at law has no right to make a compromise, yet a court will be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed upon, or not fairly exercised. But where the sacrifice is such, as to leave it scarcely possible that with a full Attorney at Law. knowledge of every circumstance such a com- be exercised; and no other tribunal can decide, promise could be fairly made, there can be no in a case of removal from the bar, with the same hesitation in saying that the compromise, being information as the court itself. If there be a unauthorized, and being, therefore, in itself void, revising tribunal, which possesses controlling ought not to bind the injured party. Though it authority, that tribunal will always feel the delimay assume the form of an award or a judgment cacy of interposing its authority, and would do at law, the injured party ought to be relieved so only in a plain case. Per Mr. Chief Justice against it. Ibid. Marshall. Ibid. 3. Where an attorney at law has been guilty of negligence, an action immediately lies against him; and when actual damages have been suffered by the plaintiff, they may be extended, if growing out of the negligence, to the day of the verdict. Wilcox v. Plummer, 4 Peters, 174. 4. If the attorney-general of the United States permits his appearance to be entered by the clerk of the supreme court, [the clerk having, by a uniform practice, always entered the appearance of the attorney-general in cases in which the United States are parties,] and to remain without objection for one term, it is conclusive on him; but he may withdraw his appearance at the first term. Farrar v. The United States, 3 Peters, 459. 5. The attorney of the plaintiffs in an action on a promissory note agreed with the defendant, whose intestate was endorser of the note, that if he would confess judgment, and not dispute her liability upon the note, he, the attorney, would immediately proceed by execution to make the amount from the drawer of the note, the principal debtor; who, he assured her, had sufficient property to satisfy the same. Upon the faith of this promise she did confess the judgment. Held, that this agreement fell within the scope of the general authority of the attorney, and was binding on the plaintiffs in the suit. The plaintiffs in the suit having failed to proceed by execution against the drawer of the note, and having suffered him to remove with his property out of the reach of process of execution, the circuit court, on a bill filed, perpetually enjoined proceedings on the judgment confessed by the administratrix of the endorser; and the decree of the circuit court was, on appeal, affirmed, by the supreme court. The Union Bank of Georgetown v. Geary, 5 Peters, 99. 6. 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, although he may not have the right to discharge such execution, without receiving satisfaction. Ibid. 9. The charges in a regular complaint against an attorney of court, ought not to be received and acted on, unless made on oath. It is a course of proceeding which is recommended by considerations too obvious to require that they should be urged. Ibid. 10. In Ex parte John L. Tillinghast, 4 Peters, 108, the supreme court held, that a counsellor at law practising in the highest court of the state of New York, in which state he resided, who had, by the district judge of the district court of the United States, been struck off the rolls of the court for contempt, may be admitted as a counsellor of the supreme court. Ex parte Tillinghast, 4 Peters, 108. 11. It is unnecessary for an attorney, or solicitor, who prosecutes a suit for the Bank of the United States, or for another corporation, to produce a warrant of attorney under the corporate seal of the corporation. Osborn v. The Bank of the U. S., 9 Wheat. 738; 5 Cond. Rep. 741. 12. Whatever authority may be necessary for an attorney or solicitor to appear for a natural or artificial person, it is not a ground for reversal for error in an appellate court, that such authority does not appear on the face of the record. It is a formal defect, which is cured by the statute of jeofails, and the thirty-second section of the judiciary act of 1789, ch. 20. Ibid. 13. An attorney at law, in virtue of his general authority as such, is entitled to take out execution upon a judgment recovered by him for his client, and to procure a satisfaction thereof by a levy on lands, or otherwise, and to receive the money due on the execution, and thus to dis charge the execution. And if the judgment debtor has a right to redeem the property sold under the execution, within a particular period of time, by payment of the amount to the judg ment creditor, who has become the purchaser of the property, there is certainly strong reason to contend that the attorney is impliedly author ized to receive the amount, and thus indirectly 7. Query, as to the power of the supreme to discharge the lien on the land. At least, if court to interfere by mandamus to a circuit or (as is asserted at the bar) this be the common district court, in the case of the removal or sus- course of practice in the state of Tennessee, it pension of an attorney at law, of those courts. will furnish an unequivocal sanction for such an Ex parte Burr, 9 Wheat. 529; 5 Cond. Rep. 660.act. Erwin v. Blake, 8 Peters, 18. 8. The profession of an attorney at law is of great importance to an individual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him; on the other hand, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the court. This discretion ought to be exercised with great moderation and judgment, but it must 14. Query, Whether an action can, in any case, be brought for an individual in the name of the United States, by any other than the district attorney of the United States, he refusing to bring it? U. S. v. Thomas Morris, 1 Paine, 209. 15. An attorney at law, it is said, cannot make a compromise to bind his client: and the case of Holker v. Parker, 7 Cranch, 436, was relied upon for this doctrine. But upon examining the opinion delivered by the chief justice in that case, we find him saying, "that though an at Attorney at Law. torney at law, merely as such, has, strictly | 24. An attorney is bound to disclose to his speaking, no right to make a compromise, yet a client, if he has any adverse retainer which may court would be disinclined to disturb one which affect his own judgment, or his client's interest. was not so unreasonable in itself as to be ex- But the concealment of the fact is not a necesclaimed against by all, and to create an impressary presumption of fraud. Ibid. sion that the attorney's judgment had been imposed on, or not fairly exercised. Though it may assume the form of an award or judgment at law, the injured party, if his own conduct has been perfectly blameless, ought to be relieved against it." What that court would have said in applying the principles to the case of a compromise made by an attorney in fact, as well as the attorney at law, fully and promptly communicated to his principal, who afterwards received the fruits of it, and who acquiesced for ten or twelve years in what had been done, we need be at no loss to conjecture. Mayer v. Foulkrod, 4 Wash. C. C. R. 511. 16. If an attorney of the United States reside within one hundred miles of the place of caption of a deposition, he must be notified. The Argo,, 2 Gallis. C. C. R. 314. 17. Notice of taking depositions should always be given to the attorney of record, if any. Ibid. 18. After a general appearance by an attorney for both the defendants, who were partners, and the pleadings entered by him in the name of both, one of the defendants cannot plead that he was not served with process, and had not appeared in the suit. Field v. Gibbs et al., 1 Peters' C. C. R. 155. 19. An attorney is answerable in damages to a party, if, without his authority, he appears to a suit against him. Ibid. 455. 25. An assignment was made by a debtor, for the benefit of his creditors, to two attorneys at law, who were partners in business, as trustees; one of them assented to the assignment at the time, the other being absent. It was held, that the latter must be presumed to assent also, unless upon notice he refused to accept the trust, and notified it to the debtor; and especially if he and his partner proceeded to act under the assignment by a private conditional agreement between them, as to giving a priority to certain attachments made by them in favour of certain creditors, which agreement was unknown to the debtor. And it seems, that if under such circumstances the priority could be held valid, the assignment would be an operative trust as to all other creditors of the debtor. Gordon v. Coolidge, 1 Sumner's C. C. R. 537. 26. Attorneys at law, having confided to them by creditors a discretionary power to collect a debt, may, in the exercise of their discretion, assent to an assignment for the benefit of creditors, and bind their clients thereto, as within the scope of their authority. Ibid. 27. If the defendant insists upon it, the plaintiff's attorney is bound to file his warrant of attorney; but if the court shall be satisfied, by the production of the power of attorney, or by parol evidence, that the attorney has an authority to act for the plaintiff, they will not, in a summary way, arrest the proceedings in the suit. The King of Spain v. Oliver, 2 Wash. C. C. R. 429. 20. An attorney is not bound to disclose any thing confided to him by his clients, but is bound to testify to matters which, in any other way, came to his knowledge. Upon notice served on 28. A counsel, or attorney, is not a competent him to deliver papers, it was no ground of objec-witness to testify as to facts communicated to tion that he had delivered the papers to his either by his client, in the course of the relation client. The possession of the attorney is that subsisting between them, but may be examined of the client, and he is within the meaning of as to the mere facts of the existence of that rethe fifteenth section of the judiciary act of 1797, lation. Chirac v. Reinicker, 11 Wheat. 280; 6 as to notice to produce papers.. Lessee of Cond. Rep. 310. Rhoades et al. v. Selin, 4 Wash. C. C. R. 718. 21. A ratification of the proceedings of an attorney in a suit, is not valid to bind the client, unless it is made with a full knowledge of the material facts. Williams v. Reed, 3 Mason's C. C. R. 405. 22. It seems that an attorney at law is not bound to be personally present, or personally to co-operate with the appraisers, who, under the laws of Maine, are authorized to set off real estate by appraisement, to satisfy an execution. Ibid. 23. If a creditor has several debts, some of which are secured by mortgage, and some not, it is not gross negligence in the attorney in a suit at law, to unite them all in a single suit at law, and so take a single judgment therefor; and if in such case the execution issuing on the judg ment is satisfied in part only, a court of equity will apply the moneys received on the execution, in the first instance, to extinguish such parts of the debts and judgments as were not secured by mortgage, Ibid. 29. Confidential communications between client and attorney, are not to be revealed at any time. The privilege is not that of the attorney, but of the client, and it is indispensable for the purposes of private justice. Ibid. 30. Whatever facts, therefore, are communicated by a client to a counsel, solely on account of that relation, such counsel are not at liberty, even if they wish, to disclose it; and their testimony is incompetent. Ibid. 31. A counsel may, however, be asked, (and in answering the question, his testimony is competent,) whether he had been retained by the party as counsel, or attorney; but he cannot be asked in what capacity he was so retained, or what claim or title he was employed to maintain. Ibid. 32. An attorney is not permitted to disclose, as a witness, the secrets of his client; because, in doing so, he would betray a confidence which, from necessity, the client must repose in him. Andrews et al. v. Solomon et al., 1 Peters' C. C. R. 356. Attorney in Fact-Sale of Land. 33. All the reasons which apply to the attorney, apply to the interpreter between the client and attorney, of whom he is merely the organ. lbid. 34. But a person who came to the knowledge of facts while a student in the office of the attorney consulted by the party in relation to the matter, may be a witness. İbid. 35. The marshal of the United States may have an attachment against an attorney for his fees, if the attorney has endorsed the writ, and if, by the law of the state, he is liable to costs. 2 Gallis. C. C. R. 101. 2. Attorney in Fact. 38. A letter of attorney may, in general, be revoked by the party making it, and is revoked by his death; although, during the life of the principal, it may have been irrevocable. Hunt v. Rousmanier's Adm'r., 8 Wheat. 174; 5 Cond. Rep. 401. construed to be to transact it according to the laws of the place where it is to be done. A sale of slaves authorized to be made in Louisiana, by an executrix, must be presumed to be intended to be done in the manner required by the laws of that state to give it validity; and the purchaser, equally with the seller, is bound, under these circumstances, to know what the laws are, and to be governed thereby. The law will never presume that parties intend to violate its precepts. Owings v. Hull, 9 Peters, 607. 46. A ratification of the unauthorized acts of an attorney in fact, without a full knowledge of all the facts connected with those acts, is not binding on the principals. No doctrine is better settled on principle and authority than this, that the ratification of the act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is invalid, because founded on mistake or fraud. 39. Where a power of attorney forms a part of the contract, and is a security for the perform- | Ibid. ance of any act, it is usually, in its terms, revocable; and if it is made revocable, it is deemed at law irrevocable. Ibid. 40. A power to an attorney, coupled with an interest, survives the person who gives it, and may be executed after the death of the grantor. Ibid. 41. To constitute a power, coupled with an interest, there must be an interest in the thing itself, and not merely in the execution of the power. Ibid. 42. The general rule that a power of attorney, though irrevocable by the party during his life, is extinguished by his death, is not affected by the circumstance that testamentary powers are executed after the death of the testator: the law, in allowing a testamentary disposition of property, not only permits a will to be considered as a conveyance, but gives it an operation which is not permitted to deeds which have their operation during the life of the person who executes them. Ibid. 43. A power of attorney to dispose of a vessel belonging to the principal, was given, instead of a mortgage or bill of sale of the vessel, as a security for money loaned to the owner of the vessel. The power of attorney was, under mistake of the law, deemed and intended as a security to the lender, of equal efficiency as a mortgage or bill of sale. The grantor of the power of attorney died before the power was executed, and the power became void. It was decided that a court of equity cannot give relief for mistakes in law, and therefore that the lender of the money had no lien on the vessel for the money loaned, after the death of the owner under the power of attorney. Ibid. 1 Peters, 1. 44. An instrument, purporting to be executed by an attorney in fact, is not admissible in evidence, until the power of attorney is produced and proved. Lessee of James v. Gordon, 1 Wash. C. C. R. 333. 45. Every authority given to an agent or attorney to transact business for his principal, must, in the absence of any counter proof, be AUCTION. 1. Upon a sale of land at auction, if the terms be that the purchaser shall, within thirty days, give his notes, with two good endorsers, and if he shall fail to comply within thirty days, then the land to be resold on account of the first purchaser; the vendor cannot maintain an action against the vendee for a breach of the contract, until a resale shall have ascertained the deficit: although the vendee shall have instructed an attorney to draw a deed, and insert his name as purchaser. Webster & Ford v. Hoban, 7 Cranch, 399; 2 Cond. Rep. 546. 2. Where certain mill privileges belonging to the defendant were sold at auction by W., as their agent, to the plaintiff, and after the lapse of five years, when the property had greatly deteriorated, the plaintiff brought the present bill in equity, charging that H. had, by sham bids, fraudulently enhanced the price far beyond the real value of the property, but not charging the defendants with knowledge and connivance with them at the time of sale: it was held, that as the false bidding by the auctioneer was unauthorized by the seller, it would not avoid the sale, although it would be a good ground of action against the auctioneer for damages; that H. ought to have been made a party to the bill; and that the lapse of such a length of time was, under the circumstances, a bar to the present action. Veazie v. Williams, 3 Story's C. C. R. 612. 3. A release from all liability in the principals, having been executed by the plaintiff to the auctioneer; it was held, that it was a release of his principals, the defendants. Ibid. 4. When, at an auction sale, all the bidders except the purchaser are by-bidders, secretly employed by the seller, and the judgment of the purchaser is improperly influenced by their bids, the sale is a fraud, against which equity Auctioneer.-Audita Querela.-Auditors in Chancery.-Authority. will relieve the purchaser. But when there are real bidders, as well as sham bidders, and the last bid before the purchaser is a real bid, and the judgment of the real bidders and that of the purchaser has not been blinded by the sham bidders, the sale is valid. Ibid. 5. A purchase by an auctioneer for himself, at a sale made by him in behalf of his principal, is not void, but voidable by the principal; but third persons cannot question the sale. Ibid. AUCTIONEER. Parol evidence of the declarations of an auctioneer, contrary to the written terms of sale, is not admissible; but such evidence of the property intended to be sold by him, is proper. Lessee of Wright v. Deklyne, Peters' C. C. R. 199. AUDITA QUERELA. An audita querela is the proper remedy for a person whose lands are equally responsible with the lands of others under a judgment, to obtain an equal contribution from the other lands to satisfy the judgment. Wilson v. Watson, Peters' C. C. R. 269. AUDITORS IN CHANCERY. 1. The practice in chancery is, for the court to notice only those errors in the report of auditors which appear on the face of the report, or are expressly set down in the exceptions; and then the evidence on which the items were al lowed must appear on the record. Chappedelaine v. Decheneaux, 4 Cranch, 326; 2 Cond. Rep. 116. 2. The report of auditors appointed by consent of parties, in a suit in equity, is not in the nature of an award by arbitrators, but may be set aside by the court, although neither fraud, corruption, partiality, nor gross misconduct on the part of the auditors, be shown. Field et al. v. Holland et al., 6 Cranch, 8; 2 Cond. Rep. 285. 3. The term "auditors," designates agents or officers of the court, who examine and digest accounts for the decision of the court; they do not decree, but prepare materials on which a decree may be made. Ibid. subject for examination in a court, and ought always to be referred to a commissioner, to be examined by him, and reported, in order to a final decree. To such a report, the parties may take any exceptions, and thus bring any ques tions they may think proper before the court. Du Bourg de St. Colombe's Heirs v. The U. S., 7 Peters, 625. 8. Where no exception has been taken to the report of auditors, the report, at the hearing, is liable to those exceptions only which appear on its face. Himeley v. Rose, 5 Cranch, 313; 2 Cond. Rep. 267. AUTHORITY. 1. It is believed to be a general rule, that an agent, with limited powers, cannot bind his principal, when he transcends his power. It would seem to follow, that a person transacting business with him, on the credit of his principal, is bound to know the extent of his authority; yet, if the principal has, by his declarations of conduct, authorized the opinion that he had given more extensive powers to his agent than were in fact given, he would not be permitted to avail himself of the imposition, and to protest bills, the drawing of which his conduct has sanc tioned. Schimmelpennich et al. v. Bayard et al., 1 Peters, 290. 2. An agent for collecting of debts merely, is not a factor, within the meaning of the 13th sec. of the Virginia act of limitations. Hopkirk v. Bell, 4 Cranch, 164; 2 Cond. Rep. 68. 3. If an agent locate land for himself, which he ought to locate for his principal, he is in equity a trustee for, and liable to account to his principal. Massie v. Watts, 6 Cranch, 148; 2 Cond. Rep. 336. 4. The agent who makes insurance for his principal has authority to abandon without a formal letter of attorney. The Chesapeake Ins. Co. v. Starke, 6 Cranch, 268; 2 Cond. Rep. 367. 5. The act of an agent, done without authority, may be ratified by the principal, so as to bind him in the same manner as if an original authority had existed. Clark's Ex'rs. v. Van Riemsdyk, 9 Cranch, 153; 3 Cond. Rep. 319. 6. By the well-settled principles of commercial law, the consignee is the authorized agent of the owner, whoever he may be, to receive the goods; and by his endorsement of a bill of lading to a bona fide purchaser for a valuable consideration, without notice of any adverse interest, the latter becomes, as against all the world, the owner of the goods. This is the result of the principle, 5. A court of equity may ascertain facts them- that bills of lading are transferable by endorseselves, if the evidence enables them to do it; or ment, and thus may pass the property. Conard may refer the question either to a jury or audit-v. The Atlantic Ins. Co., 1 Peters, 386. ors. Ibid. 4. Without expressly revoking an order of reference to auditors, the court may direct an issue for the purpose of ascertaining facts. Ibid. 6. A court of chancery may refer an account generally, and on the return of the report determine such questions as may be contested by the parties; or it may, in the first instance, decide any principal which the evidence in the cause may suggest, or all the principles on which the account is to be taken. Ibid. 7. A complex and intricate account is an unfit 7. No principle is better settled, than that the powers of an agent cease on the death of his principal. Galt et al. v. Galloway, 4 Peters, 344. 8. The officers of a bank are held out to the public as having authority to act according to the general usage, practice, and course of their business; and their acts within the scope of such usage, practice, and course of business, would, in general, bind the bank in favour of |