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INSTITUTES

OF

AMERICAN LAW.

FOURTH BOOK.

OF REMEDIES.

CHAPTER I.

PRECAUTIONS TO BE ADOPTED BEFORE THE COMMENCEMENT

OF AN ACTION.

2414. Introductory.
2417–2426. Choice of a professional man.

2418. Attorneys, solicitors, and proctors.
2420. Counsellors at law.
2425. Notaries public.
2426. Conveyancers.

2427. The brief of the case.
2430–2434. Acts to be done by the plaintiff before action.

2430. Acts to be done by the purchaser of chattels.
2431. Acts to be done by the purchaser of real estate.
2432. Performance of conditions precedent.
2433. When notice should be given.

2434. When demand should be made.
2435,2441. Acts to be done by the defendant before action.

2436. When notice should be given.
2437. A tender, what it is.
2438. The requisites of a tender of money.
2439. The effect of a tender.
2440. The tender of specific articles.
2441. Demand in set-off to be acquired.

2414. In the preceding books the rights of persons and the rights which they have over property have been discussed. It now remains for us to inquire what are the remedies which the law has provided to recompense those whose rights have been violated, and what protection it affords to prevent the violation of those rights. VOL. II.-A

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2415. Remedy is a figurative expression, which signifies the means employed which the law has provided to enforce a right or to redress an injury. It is a maxim of law that there is no wrong without a remedy: ubi jus ibi remedium. If a man has a right, he must have the means to vindicate and maintain it, and it is said that there is no right without a remedy; for, want of a right and want of a remedy are reciprocal : lex semper dabit remedium.? Remedies are very numerous, and may be variously classified. It is sometimes difficult to select the one which shall the best secure a right or redress a wrong. The mistake in selecting a remedy may cause unnecessary litigation or the total loss of a just claim.

There are many remedies which the law has put in the hands of the parties themselves, as will be fully explained hereafter; if, instead of adopting one of these, resort is had to litigation, it is evident that the expense and danger of such a course are unnecessarily incurred.

The importance of selecting a proper remedy is made manifest by the following statement, copied from a celebrated text writer:3 “Recently, a common law barrister, very eminent for his legal attainments, sound opinions, and great practice, advised that there was no remedy whatever against a married woman who, having a considerable separate estate, had joined with her husband in a promissory note for 25001. for a debt of her husband, because he was of opinion that the contract of a married woman is absolutely void, and referred to a decision to that effect, viz., Marshal v. Rutton," he not knowing, or forgetting, that in equity under such circumstances payment might have been enforced out of the separate estate. And afterward, a very eminent equity counsel equally erroneously advised in the same case that the remedy was only in equity, although it appeared upon the face of the case, as then stated, that after the death of her husband the wife had promised to pay in consideration of forbearance, and upon which promise she might have been arrested and sued at law. If the common law counsel had properly advised proceedings in equity, or if the equity counsel had advised proceedings by arrest at law upon the promise after the death of the husband, the whole debt would have been paid. But upon this latter opinion a bill in chancery was filed, and so much time elapsed before the decree that a great part of the property was dissipated, and the wife escaped with the residue into France, and the creditor thus wholly lost his debt, which would have been recovered if the proper proceedings had been adopted in the first or even second instance. This is one of the very numerous cases almost daily occurring illustrative of the consequences of the want of at least a general knowledge of every branch of law."

2416. When a party has been aggrieved, and is desirous of obtaining redress for the violation of his rights, he should adopt the best means to put himself completely in the right and to secure the evidence requisite to support his case. As most persons are ignorant of the means to be adopted to gain that end, the party should immediately apply to some professional man to aid him. The first thing to be considered, therefore, is the choice of a professional adviser or lawyer.

2417. Although a party may himself conduct a suit brought by or against him, yet experience proves that it is very dangerous for him to manage his own case, whatever may be his learning or qualities. He labors generally under such an excitement that it would be difficult to behave with that temperance and discretion so necessary in the proper management of a cause; be

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2 Johnstone v. Sutton, 1 Term, 512; Coke, Litt. 197, b. See Bacon, Abr. Actions in General, B; 1 nitt Gen. Pr. part 1, c. 1.

"Ashby v. White, 2 Ld. Raym. 953; Winsmore v. Greenbank, Willes, 577. It is said is to this maxim that the action of trespass on the case owes its origin. 3 2 Chitty, Pract. 303 note

8 Term, 545.

sides it is proper that he should not come in personal collision with the oppo nent, for this would produce many indiscreet acts which would be prejudicial to his cause.

The principal law agents in this country are, 1, officers known in the courts of common law by the name of attorneys, in courts of equity as solicitors, and in courts of admiralty as proctors, 2, counsellors, 3, notaries, 4, conveyancers.

2418. An attorney at law is an officer in a court of common law jurisdiction who has been admitted in such court to the practice of the law, after an examination as to his qualification, and is duly authorized to manage the cause of any client who may confide in him as his advocate.

Attorneys are not admitted to practice unless they have qualified themselves by previous study, and have undergone an examination according to the rules of the court; they are also required to be men of good moral character. In general, persons applying to be received as attorneys have had the benefit of a liberal education, but although this is a great advantage, yet it is not indispensably necessary, and many attorneys in this country have become highly distinguished who are self-made men. In modern times, a knowledge of the Latin and French languages, however imperfect, is sufficient, and the Greek may, in great measure, be dispensed with.

2419. The duties of an attorney, where the offices of attorney and counsellor are not separated, are to conduct the suit of his client through the courts and to take all proper and lawful measures to represent his case fully and fairly before the court and jury. It is not less his duty to advise him, in the preliminary stages of the cause, as to the best mode of a just settlement of it, either by compromise or otherwise when it can be done, and, if not, to direct him as to the best mode of securing his evidence and putting himself in the right when that depends upon himself.

2420. Counsellors at law or barristers in England form a separate class distinct from the attorneys, and no person is permitted to be both a counsellor and attorney. This was formerly the general rule in this country, but now no such distinction is made in the courts of the United States, nor probably in any of the state courts. Where the distinction is kept up it is the duty of the attorney to examine the case, collect all the facts, and make a clear brief of them, and of the points of law on which the case can be supported. This brief is submitted to counsel, and on it he relies for the true statement of the facts.

2421. It is the duty of the counsel to draft or review and correct the pleadings, to manage the cause in court on the trial, and during the whole course of the suit to apply the established principles of law to the exigencies of the case. He is not bound, as is sometimes vulgarly supposed, to take any unjust or unfair advantage for the purpose of overthrowing justice; on the contrary, he should always remember he is one of her ministers. In giving their advice to their clients and in the management of their causes, professional men have duties to perform to their clients, to the public, and to themselves. In such cases they have thrown upon them something which they owe to the fair administration of justice, as well as to the private interests of their employers. The interest propounded for them ought in their own apprehension to be just, or at least fairly disputable; and when such interests are propounded, they ought not to be pursued per fas et nefas. Still, however, counsel ought not to undertake in a doubtful case to be at once judge, jury, and arbitrator, and decide against a client who may have a just cause.

2422. In the selection of an attorney, solicitor, or proctor, it is essentially important to select not a mere lawyer, but a man of known high character as to

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honor and honesty, as well as for his knowledge of all his professional duties, and also of adequate knowledge of the world, and a good negotiator-one who is disposed to avoid litigation, and above all, one who has not any connection with the expected adversary.

2423. There are men in the profession whose long established character for honor, honesty, and learning is so well known that it is not difficult to select from among them; but there are others who, though not so well known, are still deserving of patronage on account of their personal merit and learning. In the selection of these the following rules should be observed :

A purchaser should never employ on his behalf an attorney or solicitor who is concerned for the vendor of the estate; in such a case the attorney would be placed in a position unpleasant to himself of deciding between the conflicting interests of the parties, and it might become impracticable for him to act with honor toward both of his employers.

A cestui que trust should not select the trustee to act for him in a case relating to the trust property, though the trustee may be an attorney, for their interest might conflict with each other; and again, the interest of the attorney might be opposed to that of the trustee. Indeed, the attorney himself, feeling a just sense of delicacy, would not consent to act as attorney, and as such perform those acts which he was bound to do as trustee.

No attorney, solicitor, or counsel should be employed who has been concerned for the opposite party in any other suit or business by which he would be enabled to take advantage of facts previously communicated to him confidentially or incidentally, and which would be injurious to the latter. Nor can an attorney who has been employed by one of the parties give up his client and become concerned for the other; for, having obtained his client's secrets, he cannot lawfully make any use of them to his disadvantage, and if he attempts to do so, he will be restrained.

2424. The selection and employment of an attorney or other professional man is called a retainer. Although it is not indispensably necessary that the retainer should be in writing, unless required by the other side, it is still very expedient. It is therefore highly proper, particularly when the client is a stranger, to require from him a written retainer, signed by himself; and, in order to avoid the insinuation that it was obtained by contrivance, it should be witnessed by one or more respectable persons. When there are several plaintiffs, it should be signed by all, and not by one for himself and others, especially if they are trustees or assignees of a bankrupt or insolvent. The retainer should also state whether it be given for a general or qualified authority.

The practice of obtaining a written retainer is for the advantage of both the attorney and the client. It is better for the attorney, because he gets rid of all difficulty about proving his retainer; and it is better for many clients, as it

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6 Chalmondeley v. Clinton, 19 Ves. Ch. 261, 273. It is laid down in this country that an attorney will not be allowed to change sides in the same cause, though at different trials; but where an attorney in the course of other business has obtained a knowledge of matters connected with the suit in question, he will not be prevented from acting against the party through whose business he obtained such knowledge. Price v. Grand Rapids R. Ř., 18 Ind. 137.

In Maryland and Maine the attorney need not have a warrant of attorney to appear. Henck v. Todhunter, 7 Harr. & J. Md. 275; Penobscot Boom Co. v. Lamson, 16 Me. 224; Bridgton v. Bennett, 23 Me. 420. In some states, as Pennsylvania and Illinois, a warrant of attorney to appear is not required, unless demanded by the other side. Lynch v. Commonwealth, 16 & R. Penn. 368; Campbell v. Galbraith, 5 Watts, Penn. 423. In general, the authority of an attorney is presumed unless something appears to the contrary. Hayes v. Shattuck, 21 Cal. 51, but when called in question is to be determined by the court. Krause v. Hampton, 11 Iowa, 457; Commissioners v. Purdy, 36 Barb. N. Y, 266.

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