« ZurückWeiter »
puts them on their guard, and prevents them from being drawn into law suits without their own express direction.
At the time of giving the retainer, it is usual for the client to pay a sum of money to the attorney for the purpose of insuring his services; this is called a retaining fee. When an attorney is thus employed, there is an implied contract, on his part, that he will use due diligence in the course of legal proceedings, but it is not an undertaking to obtain a judgment. He is bound to act
" with the most scrupulous honor, and to attend to the interest of his client only.10
2425. A notary public is an officer appointed in the several states under their respective constitutions and laws. These officers are common all over the continent of Europe, where they exercise much more power than they do in England." Their acts have long, by common consent of merchants and courts of all nations, had peculiar weight and respect attached to them."2
2426. A conveyancer is one who makes it his business to draw deeds of conveyance of lands for others. These are not officers appointed by law, any one having the right to exercise that profession. It is usual for conveyancers to act as brokers for the seller. In these cases the conveyancer should examine with scrupulous exactness the title to the lands which are conveyed by his agency, and, if this be found good, that the estate is altogether unincumbered. In cases of doubt, he should always suggest to his employer to take the advice of counsel.
Conveyancers also act as brokers for the loan of money on real estate, secured by mortgage. In these cases, the same care should be observed that the title is good, and the property is clear of incumbrances.
For this purpose the conveyancer should make a brief of title, that is, an abridgment of all the patents, deeds, indentures, agreements, records, and papers relating to the estate.
Owen r. Ord, 3 Carr. & P. 349. • Gallaher v. Thompson, Wright, Ch. Ohio, 446; see Cox v. Livingston, 2 Watts & S. Penn. 103; Hogg v. Martin, Ril. So. C. 156; Wilson v. Russ, 20 Me. 421; Mardis v. Shackleford, 4 Ala. N. s. 493; Wilcox v. Plummer, 4 Pet. 172.
10 Galbraith v. Elder, 8 Watts, Penn. 81; Cleavinger v. Reimer, 3 Watts & S. Penn. 486.
1. These officers were known among the Romans, but in Rome they were not at first invested with a public character. Originally, slaves, but afterward freemen, had tables in the forum, or public place, whose profession was to receive, excipere, the agreements of citizens who applied to them to reduce their contracts to writing. They were then called tabellions, from tabula or tabella, which in this sense meant those tables or plates covered with wax which were then used instead of paper. Tabellions differed from notaries in many respects; they had judicial jurisdiction in some cases, and from their judgments there were no appeals. Notaries were then the clerks or aiders of the tabellions; they received the agreements of parties, which they reduced to short notes, and, on this account, they were called notaries. These contracts were not binding until they were written in extenso, which was done by the tabellions. In after times, the notaries themselves wrote out at length these contracts, which was called engrossing. When thus engrossed, the contract was signed by the parties, when they could sign; if not, mention was made of that fact. As these contracts required to be proved in court in case of dispute, it became usual, and afterward it was required that they should be recorded on the public registers, in order to give them complete authenticity. Merlin, Répert. verbo Notaire, & 1; D'Alembert, Encycl. Tabellion ; 6 Toullier, n. 211, note.
Notaries are appointed by the states, and their powers and duties vary in the different states. Their general duties are to protest bills of exchange and promissory notes, to authenticate copies, to draw up protests in maritime matters, to attest deeds and administer oaths. By the act of Sept. 16, 1850, 9 Stat. 458, notaries may take acknowledgments and depositions, and administer oaths under the laws of the United States, or for the purposes of evidence in cases in the United States courts.
A protest of a bill by a notary is received as evidence in the courts of all civilized countries.
In making a brief of title, the practitioner should be careful to place every deed and other paper in chronological order. The date of each deed, the names of the parties, the description of the property, and all covenants affecting the estate, should be particularly inserted.
A vendor of an interest in realty ought to have his title investigated, abstracted, and evidence in proof of it ready to be produced and established before he sells, for if he sells with a confused title, or without being ready to produce deeds and vouchers, he must be at the expense of clearing it. He is bound, at his own expense, to furnish the purchaser with an abstract of his muniments, and deduce a clear title to the estate.'
2427. A prudent practitioner and professional adviser will, as soon as he has been employed in a case, obtain a correct statement of the facts; for this purpose he ought to put in writing all questions in the slightest degree connected with the case, not forgetting such as, if answered in the affirmative, would be most against his client; this is requisite, because many clients tell only the side of the case most favorable to themselves. These questions should all be answered fully in writing. Not satisfied with this examination, the attorney should read all papers connected with the case, and examine all the witnesses within his reach, and make memoranda of what they say.
2428. Being thus possessed of the facts, the attorney should make a brief of the case, that is, a detailed statement of the facts, and by that means ascertain what is wanting to support the plaintiff's case, when he acts for the plaintiff. When he is the attorney of the defendant, his brief should extend to all the pleadings, and also to the points of law or questions raised by the issue. Such a full brief should contain:
A statement of the names of the parties, and their residences and occupations, the character in which they sue and are sued, and wherefore they prosecute or resist the action.
The name of the court where the action is brought, the number and term of the action, and the names of the respective attorneys.
An extract of the docket entries.
A regular, chronological, and methodical statement of the facts in plain, common language.
A summary of the points or questions in issue, and of the proof which is to support the issues, mentioning specially the names of the witnesses by which the facts are to be proved, or if there be written evidence, an abstract of such evidence.
The personal character of the witnesses should be mentioned; whether their moral character is good, bad, or doubtful, whether they are naturally timid or over zealous, whether firm or wavering.
When known, the evidence of the opposite party, and such facts as are calculated to oppose, confute, or repel it.
Perspicuity and conciseness are the most desirable qualities of a brief, but when the facts are material they cannot be too numerous; when the argument is convincing and weighty it cannot be too extended.
2429. After having made a brief it is easy to perceive what is requisite to enable the plaintiff to make out his case, and what the defendant needs to
13 1 Chitty, Pract. 304; Wilson v. Allen, 1 Jac. & W. Ch. 623, 624; Sugden, Vend. 294.
14 Sugden, Vend. 294. The rules of conveyancing are much simplified in this country by the system of recording deeds, which does not prevail in England. As the records are open to all, there is no implied obligation on the part of the seller to exhibit the state of his title to the purchaser. The examination of the title is made by the agent of the purchaser at his own expense or at that of the seller as may be agreed.
complete his defence. Before suit is brought, both parties may do many acts which will enable them, the one to maintain his action, and the other to establish his defence.
2430. It may be premised that, even before a cause of action arises, many acts may be done to entitle the plaintiff to recover after it has arisen, or which
may defeat the plaintiff. A purchaser of personal goods should take possession of them, or, if they are in the hands of a third person, he should give notice to him that he has become the purchaser of them, and after such notice the possessor will part with them at his peril; for the same reason an assignee of a chose in action should give notice of the assignment to the debtor, and all securities for such a debt or chose in action should be required to be delivered to the assignee. The want of this precaution may subject the assignee to a loss, for until notice the assignor would be entitled to receive payment; or, if he assigned to another person who had no notice, he would be entitled to the chose in action if he gave the first notice in preference to the first assignee, and acquire a better equity.
2431. The purchaser of real estate should see that his title is clear and free from incumbrances, and place his deed upon record within the time prescribed by law. The deeds should also be delivered to the purchaser; for if the vendor should retain them and afterward sell to a third person who had no notice of the first sale, and the deed was not recorded, the latter would be entitled to the property if his deed was first recorded. 2432. When a party is bound to fulfil a condition precedent to entitle him
а self to the performance of a contract, he must be cautious to perform such condition.
2433. In some cases, in order to make a party responsible, notice must be given to him and a request that he should fulfil his engagement; for example, notice of non-payment of a bill of exchange must be given to an indorser to hold him responsible. As a general rule, whenever the defendant's liability to perform an act depends on another occurrence which is best known to the plaintiff, and of which the defendant is not bound to take notice, the plaintiff must prove that due notice was in fact given.15
2434. It is advisable, if not necessary, in many cases to give notice, make demands, and require explanations before action brought. Not unfrequently in such cases litigation may be avoided; but if it has to be resorted to, the party may so place himself in the right that on this account alone he will have the favorable ear of the court and jury, and in some cases he may throw the costs on the opposite party. When a man's wife, child, or apprentice is unlawfully detained by another, a demand for the restoration of them should be made. 16 If goods have been illegally taken away, or wrongfully detained, it is proper to make a demand of them before action brought, unless they have been taken and held in such a manner as to amount to a conversion. Notice must be given to a sheriff not to sell the goods he has levied upon when they belong to another than the defendant. Before making an entry on the land of another to carry away your goods, a request should be made to him to deliver them to you.is And before entering upon the land of another to abate a private nuisance, a request to remove it should first be made. 19
2435. In anticipation of difficulties which may arise, it frequently becomes highly proper, if not indispensable, that notice should be given, and the want
15 Lundie v. Robertson, 7 East, 231.
Anthony v. Hany, 8 Bingb. 191. 19 Lonsdale v. Nelson, 2 Barnew: & C. 302, 311; Winsmore v. Greenbank, Willes, 583.
may render the party liable to an action which could not have been sustained against him if such notice had been given. The following are a few of the numerous cases of this class :
2436. When a wife has by her unlawful conduct induced her husband to withdraw from her the general authority with which the laws presumed he had invested her to purchase goods as his agent, he is bound in good faith to inform those who would be likely to trust her on his account that she has no longer any authority to buy on his credit. He should therefore give a public notice prohibiting third persons from trusting her on his credit, and it is advisable to give a private notice to such persons as have before sold to her on credit. Though when the wife has committed adultery such notice is not indispensable, yet it is always prudent to give it. This notice, whether general or special, will be of no avail if the husband has causelessly turned his wife away and refused her necessaries, if the wife buy nothing but necessaries.
But a son or a daughter has not the same authority to buy on the father's credit that the wife has to buy on that of her husband; if, therefore, the parent desires to withdraw the authority of his child, he should give private notice to such persons as may have before trusted him; a public notice is not requisite.
When an agent or servant has been authorized, expressly or by implication, to buy goods on credit of the principal, and the authority is withdrawn, notice of that fact should be given.
Upon the same principle, when two persons have been in partnership, the presumption of its continuance is sufficient to authorize a person to trust one of the partners in the name of the firm; and, when it has been dissolved, notice should be given specially to all persons who have before dealt with the partnership, and generally by public advertisement in the newspapers to all other persons.
2437. In cases of an expected suit on a contract, when the proposed defendant admits something to be due, care should be taken to make a lawful tender
a of it. A tender is an offer to perform an act which the party offering is bound to perform to the party to whom the offer is made. A tender may be made of
. A money or of specific articles, and as the manner of making it is different, the two modes will be separately considered.
2438. To make a valid tender of money the following requisites are necessary:
It must be made by a person capable of paying ; for if it be made by a stranger without the consent of the debtor, it will be insufficient. 20
It must be made to the creditor having capacity to receive it, or to his au
The whole sum due must be offered ; an offer of a greater sum, demanding change, is not a good tender; as, if a half eagle be tendered in payment of four dollars, demanding change of one dollar. But an offer of twenty eagles, when only fifteen were due, with a request to return the difference, has been held to be a good tender of fifteen eagles.21
An offer of the money must be made by producing it, and counting it in the presence of the creditor, unless the creditor states he will not receive it, because more is due to him, in which case its production may be dispensed with ;23
Contrary to this general rule, it has been decided in Pennsylvania that a tender of money for an infant, by his uncle, is good, though not appointed guardian at the time of the tender. Brown v. Dysinger, 1 Rawle, Penn. 408.
21 Bettershee v. 3 Campb. 70; Spigbey v. Hide, 1 ampb. 181; see Hubbard v. Chenango Bank, 8 Cow. N. Y. 88. 32 Fuller v. Little, 7 N. H. 535. Thomas v. Evans, 10 East, 101; but see Behaly v. Hatch, Walk. Ch. Mich. 369.
but a mere dispute respecting the amount of the debt, without expressly dispensing with its production, will not excuse the omission.24
The money tendered must be the lawful coin of the United States, or such foreign coin as is made current by law.25 A note for so many dollars, “in gold and silver,” must therefore be paid in money, and it cannot be satisfied by a tender of bullion, gold and silver bars, old spoons and rings, or indeed any thing but lawful coin.26 But a tender in bank-notes, if not objected to on that
a account, will be good.” And a tender was held good when made by a check contained in a letter requesting a receipt in return, which the plaintiff sent back, demanding a larger sum, without objecting to the nature of the tender.28
The tender should be made at the time agreed upon for the performance of the contract; if made afterward, it only goes in mitigation of damages, provided it be made before suit brought. It must be made in day time, before the light is entirely gone. The tender must be made to a person capable of receiving the money ;
when there are several joint obligees, the tender to one is a tender to all.31
The tender must be made at the place agreed upon for the payment; or if there be no place appointed for that purpose, a tender to the person is good.
The tender must be an unconditional and an unqualified offer to pay the money, because if the creditor were to accept it, the claim for the residue might be thereby prejudiced; therefore, a tender of a certain sum accompanied by a request of a receipt in full, or upon condition that it shall be received for the whole balance due, or that a particular document shall be given up or cancelled, is insufficient 33
2439. The effect of u tender when properly made is to defeat the plaintiff in a suit which he may afterward bring; when the plaintiff has a direct cause of action, the only effect of a tender and refusal is to expose the plaintiff to the loss of interest and costs, if the defendant pleads the tender and brings the money into court. 34
The benefit of the tender will be lost, however, if at any time afterward a demand is made of the debtor to pay the debt, and he fails to pay, because the
, money tendered belongs, to a certain extent, though not in every particular, to the creditor ;35 and if the debtor has made use of it, he cannot plead that he tendered the money and has always been ready since, en tout temps prist, to pay it.36 But in order to effect this destructive quality as to the tender, the de
44 Dickinson v. Shee, 4 Esp. 68.
* The most important constitutional question in regard to a legal tender is upon the acts of congress of July 11th, 1862, January 17th, 1863, March 3, 1863, 12 Stat. 532, 822, 710, commonly called the legal tender acts, by which the notes of the United States, or "greenbacks,” were made a legal tender in payment of all debts, public and private. The acts have been sustained as constitutional. Reynolds v. Bank, 18 Ind. 467.
* Hart v. Flynn, 8 Dan. Ky. 190.
1 Williams v. Rorr, 7 Mo. 556; Noe v. Hodges, 3 Humphr. Tenn. 162; Seawell v. Henry, 6 Ala. N. s. 226; Ball v. Stanley, 5 Yerg. Tenn. 199. » 8 Dow, Parl. Cas. 442.
7 Taunt. 787. 30 Bacon, Abr. Tender, D.
31 Warder v. Arell, 2 Wash. Va. 297. 32 Slingerland v. Morse, 8 Johns. N. Y. 476; Litt. Sel. Cas. Ky. 132. See Hunter v. Le Conte, 6 Cow. N. Y. 728.
** Haxham v. Smith, 2 Campb. 21; Holton v. Brown, 18 Vt. 224; Glascott v. Day, 5 Esp. 48; Sanford v. Buskley, 30*Conn. 344.
$4 Cornell v. Green, 10 Serg. & R. Penn. 14; Law v. Jackson, 9 Cow. N. Y. 641; 5 Cow. N. Y. 248; Raymond v. Bearnard, 12 Johns. N. Y. 274.
35 The money so far belongs to the creditor that the debtor has no right to use it, and such use of it, as deprives him of the opportunity of paying the creditor when he demands it, defeats the tender; yet it does not belong to the creditor so as to entitle him to the identical money, nor would it be his loss if it should be lost. 36 Marine Bank v. Rushmore, 28 III. 463. VOL. II.-B