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consequences of the injury, even up to the time of the verdict.1 The damages do not necessarily extend to the nominal amount of the debt lost by the attorney's negligence, but only to the loss actually sustained.2

§ 147. An attorney, being an officer of the Court in which he is admitted to practise, is held amenable to its summary jurisdiction, for every act of official misconduct. The matter is shown to the Court by petition or motion, ordinarily supported by affidavit; and the order of the Court, after hearing, is enforced either by attachment, or by striking his name from the roll. If he neglects or refuses to perform any stipulation or agreement entered into by him with the counsel or attorney of the other party, respecting the management or final disposition of the cause, or touching the trial, or the proofs; or fails to pay or perform any thing, which he has personally undertaken that his client shall pay or perform; or improperly refuses to deliver up documents to his client, who intrusted them to him; or to pay over to his client any moneys which he has collected for him; he is liable to this summary mode of proceeding, as well as to an action at law. But for mere negligence in the conduct of his client's business, the Courts

1 Wilcox v. Plummer, 4 Peters, R. 172. And see Marzetti v. Williams, 1 B. & Ad. 415.

Crooker v. Hutchinson, 2 Chipm.
And see infra, § 599.

2 Dearborn v. Dearborn, 15 Mass. 316; 117; Huntington v. Rumnill, 3 Day, 390. 3 In several of the American States, persons of full age, and qualified as the statutes of those States prescribe, are entitled to admission to practise as attorneys in any of the Courts, and it is made the duty of the Judges to admit them accordingly. Whether persons of this class are amenable to the summary jurisdiction of the Courts, has been doubted. If they are not, this fact shows the great impolicy of popular interference with the forms of administering justice, since in this case the legislatures will have unconsciously deprived the people of the benefit of one of the strongest securities for professional good conduct.

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4 1 Tidd's Practice, 85 – 90, (9th edit.); Sharp v. Hawker, 2 Bing. N. C. 66; De Wolfe v. 2 Chitty, R. 68; In re Fenton, 3 Ad. & El. 404 ; In re Atkin, 4 B. & A. 47. To support the action for moneys collected, it is essential to prove a demand made on the attorney. Satterlee v. Frazer, 2 Sandf. S. C. R. 141.

will not interfere in this manner, but will leave the party to his remedy by action.1

§ 148. Where the remedy against an attorney is pursued by action at law, and the misconduct has occasioned the loss of a debt, the existence of the debt is a material fact to be shown by the plaintiff. If it were a judgment, this is proved by a copy of the record, duly authenticated. If not, and an arrest

of the debtor upon mesne process is a material allegation, the writ must be proved by itself, or by secondary evidence, if lost; unless it has been returned; in which case the proof is by copy. If the injury to the plaintiff was occasioned by departure from the known and usual course of practice, this should he shown by the evidence of persons conversant with that course of practice. The fact of indebtment to the plaintiff, by his debtor, must also be proved by other competent evidence, where it has not yet passed into judgment. In short, the plaintiff has to show, that he had a valid claim, which has been impaired or lost by the negligence or misconduct of the defendant. And if the attorney, having received money for his client mixes it with his own, in a general deposit with a banker in his own name, and the banker fails, the attorney is liable for the loss. He should have deposited it in his client's name, or otherwise designated it as money held by him in trust for his client, so earmarked as to be capable of precise identification.5

§ 149. If the injury to the plaintiff resulted from the attor ney's neglect in regard to a conveyance of title, or in the examination of evidences of title, it is, ordinarily, necessary to produce the deeds or documents in question; whether the neglect were in a case drawn up, for the opinion of counsel,

1 Brazier v. Bryant, 2 Dowl. P. C. 600; In re Jones, 1 Chitty, R. 651. 2 Ante, Vol. 1, § 501-514.

3 Russell v. Palmer, 2 Wils. 325, 328.

41 Steph. N. P. 434. And see infra, § 599.

5 Robinson v. Ward, 2

C. & P. 59.

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in which certain deeds materially affecting the title were omitted;1 or, in the insertion of unusual and injurious covenants of title in a lease, without informing him of the consequences;2 or, in advising him, or acting for him, in the investment of money under a will, upon the perusal of only a partial extract from the will, and not of the entire will itself; or, were any other misfeasance or neglect as a professional agent in the conveyance of title. of title. And if the client has thereby been evicted from the land, he should prove the eviction by a copy of the judgment, and by the writ of possession duly executed; or, if he has peaceably submitted to an entry and ouster without suit, he must show that it was in submission to an elder and better title.5

1 Ireson v. Pearman, 3 B. & C. 799.

2 Stannard v. Ullithorne, 10 Bing. 491.

3 Wilson v. Tucker, 3 Stark. R. 154.

4 1 Steph. N. P. 434. And see Gore v. Brazier, 3 Mass. 543.

5 Hamilton v. Cutts, 4

Mass. 349; Sprague v. Baker, 17 Mass. 586, 590.

BASTARDY.

§ 150. By the Common Law, children born out of lawful wedlock are bastards. By the Roman Law, if the parents afterwards intermarried, this rendered the issue legitimate. The rule of the Common Law prevails in the United States, except where it has been altered by statutes; which in several of the States have bech enacted, introducing, under various modifications not necessary here to be mentioned, the rule of the Roman Law. The modern doctrine of the Common Law on this subject is this: that where a child is born during lawful wedlock, the husband not being separated from the wife by a sentence of divorce à mensâ et thoro, it is presumed that they had sexual intercourse, and that the child is legitimate; but this presumption may be rebutted by any competent evidence, tending to satisfy a jury, that such intercourse did not take place any time, when, by the laws of nature, the husband could have been the father of the child.2 If the

1 In New Hampshire, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Delaware, South Carolina, Tennessee, and Arkansas, the rule of the Common Law is understood to prevail. A subsequent marriage of the parents renders their prior issue legitimate, in Kentucky, Alabama, Illinois, Louisiana, Michigan, and Missouri. Beside the marriage, a subsequent acknowledgment of the child by the father is requisite in Indiana, Ohio, Vermont, Virginia, Maine, and Massachusetts. In Maine, other issue must have been born, after the marriage. In Massachusetts, the child can inherit only from its parents. In North Carolina a decree of legitimacy in favor of antenuptial issue is obtained from the Courts, on application of the father, after the marriage. See 3 Cruise's Dig. tit. 29, ch. 2, § 8, note, (Greenleaf's ed.) where the laws of the several States on this subject are more particularly stated.

2 See the opinions of the Judges in the Banbury Peerage case, in Nicholas on Adulterine Bastardy, p. 183, 184; and of Ld. Redesdale and Ld. Ellenborough, Id. p. 458, 488; Morris v. Davies, 3 C. & P. 427; 5 C. & Fin. 163; Rex v. Luffe, 8 East, 193; Goodright v. Saul, 4 T. R. 356; Pendrel u. Pen

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husband and wife have had opportunity for intercourse, this merely strengthens the presumption of legitimacy; but it may still be rebutted by opposing proof. And if they have cohabited together, yet this does not exclude evidence, that the husband was physically incapable of being the father. But if the child was begotten during a separation of the husband and wife à mensa et thoro by a decree, it will be presumed illegitimate; it being presumed, until the contrary is shown, that the sentence of separation was obeyed. But no such presumption is made, upon a voluntary separation.3

drel, 2 Stra. 924; Stegall v. Stegall, 2 Brock. 256; Head v. Head, 1 Turn. & Russ. 138; 1 Sim. & Stu. 150; Cope v. Cope, 5 C. & P. 604; 1 M. & Rob. 269. The presumption mentioned in the text, is not to be rebutted by circumstances which only create doubt and suspicion; but it may be wholly removed by showing that the husband was - 1st, impotent; 2dly, constantly absent, so as to have no intercourse or communication of any kind with the mother; 3dly, absent during the entire period in which the child must, in the course of nature, have been begotten; -4thly, present, but under such circumstances as to afford clear and satisfactory proof that there was no sexual intercourse. Such evidence as this puts an end to the question, and establishes the illegitimacy of the child of a married woman.

It is, however, very difficult to conclude against the legitimacy in cases where there is no impotency, and where some society or communication is continued between the husband and wife, during the time in question, so as to have afforded opportunities for sexual intercourse. If such opportunities have occurred, no evidence can be admitted to show that any man, other than the husband may have been the father of the wife's child, whatever probabilities may exist that it was the child of another man. Throughout the investigation, the presumption in favor of legitimacy is to have its weight and influence, and the evidence against it ought to be strong, distinct, satisfactory, and conclusive. Hargrave v. Hargrave, 9 Beav. 552. This case is valuable for the observations it contains on the nature and extent of the proof necessary to establish a case of adulterine bastardy, and the kind of evidence which is admissible in such cases.

1 Ibid. See also Commonwealth v. Striker, 1 Browne, App. p. xlvii; 3 Hawks, 63; 1 Ashmead, 269.

2 Per Ld. Ellenborough in Rex v. Luffe, 8 East, 205, 206; Foxcroft's case, Id. 200, n. 205. This case, however, is more fully stated and explained in Nicholas on Adulterine Bastardy, p. 557-564. In case of access of the husband, nothing short of physical impotency on his part, will serve to convict a third person of the paternity of the offspring. Commonwealth v. Shepherd, 6 Binn. 283.

3 St. George's v. St. Margaret's Parish, 1 Salk. 123; Bull. N. P. 112.

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