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Id.; People v. Green, 58 N. Y. 295; Story v. N. Y. El. the Law of Slander as applicable to Physicians, by W. R. R. Co., 3 Abb. N. C. 478. It is difficult to see why H. Whitaker; the case of Finch v. Great Western Ry. this principle does not govern, in the construction of Co., concerning the restriction of use on an express clause (c), unless a fatal evil potency exists in the dif- grant of a private way, with a note by Edmund H. ference between “other” and “further." If it so Bennett; and the case of Kincaid v. Hardin County, governs, then L. 1880, ch. 480, is valid, unless incon- concerning a county's liability for negligence in the sistent with the local character of the county courts. construction and keeping of a court-house, with a note That it is so inconsistent is, to the minds of some peo- by M. D, Ewell. In connection with Mr. Whitaker's ple, not clear.

article, we would draw attention to the recent case of Is it impossible to contend that when (A. D. 1809) the Rodgers v. Kline, 56 Miss. 808; ś. C., 31 Am. Rep. 389, people gave the Legislature authority to “alter” the where it was held that to charge a physician with then existing jurisdiction of the county courts, and, “malpractice” in a particular case is not conclusively at the same time, doubled the pecuniary limitation in libellous in itself, if untrue, but it is for the jury to actions for damages, they intended to fix such a limit, determine whether the word was used in a general and in such cases, which the Legislature should have no actionable sense. We are glad to learn, from the pubpower to diminish, while, by clause (c) they conferred | lisher's advertisement, that the (monthly) Register has power to increase the pecuniary limitation, in their facilities for publishing the most important decisions discretion, generally.

"long before they can be elsewhere reported.”. Those who strictly construe clause (c) have to explain the consistency of the Constitution, in limiting money actions to one thousand dollars, while allowing replevin following rule: “ All records and arguments printed

The United States Supreme Court has adopted the for a chattel of any value, or foreclosure of a mort

for the use of the court must be in such form and size gage for any amount. If the people, in clause (c), intended only to confer

that they can be conveniently cut and bound so as to authority to bestow “new powers” and jurisdiction make an ordinary octavo volume. After the first day upon “new subjects," it would be instructive, if, keep

of October, 1880, the clerk will not receive or file reing in view the principle of the Landers case, and the

cords or arguments intended for distribution to the extensive enumeration of powers and subjects pos

judges that do not conform to the requirements of sessed and controlled by the county courts, on Jan. 1,

this rule.” The requisite size is 9x5/4 inches. 1870 (old Code, $ 30), one would indicate the powers and subjects intended to be added.

“It is evident that the Albany Law Journal was To construe clause (c) as justifying L. 1880, ch. 480, not consulted in the organization of the American would be in the direction of a beneficial reform; re- Bar Association. Its notes upon the meetings of the lieving the over-burdened Supreme Court calendars

Association are written in an ill-natured, mocking and clearing away occasions for the exercise of extra

spirit, which is discourteous to the gentlemen of the

association and unworthy of the dignity of the Albany judicial energies on the part of county judges.

Law Journal."

T. F. C. D. NEW YORK, Sept. 8, 1880.

So says the New Jersey Law Journal. On the same

principle it is evident that the New Jersey Law JourEditor of the Albany Law Journal:

nal was consulted in the organization of the American The letter of brother Moak, in your last issue, was Bar Association. In truth, New Jersey has had so sound in the conclusion that the Legislature exceeded much honor this year from the Association, that we their powers in attempting to confer upon county fear the learned editor is not exactly in an impartial courts a jurisdiction superior to that authorized by frame of mind. He says: “It is gratifying that New the Constitution.

Jersey was called upon to furnish the second annual The “blunder" is only of the harmless kind so likely address of the American Bar Association, and that the to be committed by legislators unfamiliar with the occasion was so happily used to perpetuate the name organic law.

and eminent services of one of our early lawyers and Chapter 245, Laws 1880, passed May 10, and which statesmen, William Patterson, honored aud remembrother Moak says expressly repeals chapter 467, Laws bered here, but not elsewhere, according to his de1870, was not to take effect until Sept. 1, 1880. The act


On the other hand, we have never desired, of May 28, 1880 (ch. 245, Laws 1880), which brother sought nor received honors from the Association, and Moak construes as amending a repealed statute, merely regard ourselves as perfectly unbiased, and in a position injects about three months of unconstitutionality into to tell the exact truth about the new institution. We what was left of chapter 467, Laws 1870.

intend so to remain. So far from being ill-natured, or Yours truly,

intending to be discourteous to its members, many of

EDWARD GEBHARD. them are our friends, and we would gladly see it prosNEW YORK, Sept. 4, 1880.

per. It is amusing to note that our contemporary regards our truth-telling about the Association as un

worthy of our dignity. Unpleasant truths are freNOTES.

quently regarded by some people as undignified. We

have dealt with the Association just as we have with PHE current number of the Journal du Droit Inter- that of our own State. We are not attending a bar

national Privé devotes nineteen pages to abstracts meeting upon the death of a lawyer, and therefore we of decisions of the courts of the United States, nearly shall be understood literally and not euphemistically. all reproduced from and credited to this JOURNAL. It we have said its membership is not increasing; that its also contains leading articles on the Competency of recent meeting was not more largely attended than that French courts to take jurisdiction of suits between of last year; that its proceedings were not so interestforeigners, by M. Féraud-Giraud; on Private Interna- | ing; that the annual address was upon a trite subject; tional Law in Italian jurisprudence, by Prof. Esper- that many of the committees do not perform their son; on the Influence of the Religion of the married duty; that there is an apparent homage to great names on causes of divorce in Austria, by Prof. Lyon-Caen; rather than to humble, useful, working material; in and other valuable matter. The London Law short, that the Association “is not a great success." Times now has a department devoted to abstracts of Is not this the exact truth? We will “put ourselves recent American decisions. The August number upon the country" upon this, and we will not even of the American Law Register has a leading article on challenge the members of the association as jurors.


The Albany Law Journal.




Berne. The following gentlemen were appointed officers of the Conference: President of the Confer

ence, Dr. F. Sieveking, President of the Hanseatic ALBANY, SEPTEMBER 25, 1880. High Court of Appeal, Hamburg; Vice-Presidents

of the Conference, E. J. B. Cremers, late Minister

of Foreign Affairs, Member of the Second Chamber CURRENT TOPICS.

of the Netherlands; F. R. Condert, Counsellor-atGREAT moralist has arisen in Danville, Va., in

Law, New York; Theodore Engles, President of the

Board of Underwriters, Antwerp; Daniel de Follethe person of a young man of the name of De

ville, Professor of Law, Douai; Dr. Ch. G. Koenig, jarnette. This young man had a sister living out at domestic service, who was seduced under promise of Society of Jurists; Sir Travers Twiss, Q. C.; G. E.

Professer of Law, Berne, and President of the Swiss marriage and abandoned, but who refused to divulge Wendi, D. C. L.; and General J. Grant Wilson, of the name of her betrayer, and was at last driven by distress and desperation to a house of ill-fame. After

New York. The president, Dr. Sieveking; delivered

the opening address. Sir Travers Twiss read & a week spent in this life, she wrote to her brother, telegraph operator in a neighboring town, express

paper “On Consular Jurisdiction in the Levant,

and the Status of Foreigners in the Ottoman Courts ing her penitence, asking forgiveness, and beseech

of Law.” One of the members of the Japanese ing him to take her away from that place of shame.

embassy, Mr. Irige, a member of the English bar, This was the first intelligence the brother had re

read a paper on “Consular Jurisdiction in Japan." ceived of the desperate act of his unfortunate sister,

The latter was especially interesting. Papers were and he at once went to her, and with six pistol shots

also read on Bankruptcy, by Dr. Fred. Tomkins, of deliberately killed her. He publicly confessed the

London; on the International Protection of Sea act, avowing that he performed it to make an ex

Cables, by Sir Travers Twiss; on the International ample of her sin and shame. A jury have just convicted him of murder in the first degree, with a

Law of Commandite and of Limited Partnership, recommendation to mercy. We hope the authorities by Mr. H. D. Jencken; on Domicile as Regulating will hang this moralist on a particularly high gal tram; on the International Bearing of Marriage

Testamentary and Matrimonial Rights, by Dr. Trislows. There is altogether too much of this lofty Laws, by Dr. J. G. Alexander. The latter recomemotional virtue in society, which seeks to right one

mended the abolition of all restraints on marriage crime by committing another, and a worse Such was the severe virtue of the boy Walworth,

not absolutely necessary. Important communica

tions were read from the American committee on who killed his father for writing offensive letters to the wife and mother, and a jury did violence to

the subject of International Copyright, and discus

sion ensued. The Conference approved resolutions justice by acquitting him on the ground that his

respecting international regulation of the law of emotions were apt to be too much for him. Then

securities payable to bearer. Notice was taken of there was that other young Virginia gentleman, who

the death of Dr. J. Thompson, of the United States. was filled with emotion against a shoemaker who

Ninety-eight new members have joined since the praised the pretty feet of his betrothed, and slew

last meeting. The attendance was smaller than him. He got off with two years' imprisonment.

usual. The Virginia jury in the present case have kept their oaths, but have shown great weakness in recom- Our last Legislature passed a bill providing for mending to mercy one of the most cruel, merciless, the payment by the city of New York of certain unnatural, and wicked of his kind. Christ would money to the widow of the late Judge Stemmler in have said, “neither do I condemn thee; go and sin lieu of the salary of which he had been deprived by no more;” but this hard-hearted brother coolly kills the action of the courts in delaying the decision on his erring and penitent sister as an “example.” If

his contested election case. Gov. Cornell, it is said, the young man had simply killed himself from a signed the bill, and then, without proceeding further, sense of his shame, society would have condoned changed his mind and erased his signature. On behis fault. The jury would probably have acquitted half of Mrs. Stemmler, it is claimed that the govhim if he had found out and killed her seducer. ernor's signature was final, and that he could not This would have been bad enough. But the line reconsider the case. Proceedings were therefore must be drawn somewhere, and we say, draw it taken for a writ of mandamus requiring Comptroller right here, and hang the careful Spartan brother. Kelly to pay the amount of the appropriation. Otherwise society will grow so virtuously refined, Thereupon Judge Beach issued an order for the exemotional and hysterical, that every man will be ad

amination of the governor and his private secretary ministering his own code of morals, at the mouth of to ascertain the facts. This order Gov. Cornell rea six-shooter, upon the persons of his relatives who fuses to obey, on the ground that the proper places offend his sense of right, finer and holier than of inquiry for the ascertainment of the enactment Christ's.

of laws of the State are the officially published vol

umes of the State and the office of the secretary of The eighth annual Conference of the Association State, and that any inquiry as to the details or parfor the Reform and Codification of the Law of Na- ticulars of the discharge of the governor's constitions opened on the 24th ult., at the Federal Palace, tutional prerogatives in the executive chamber is

VOL. 22. No. 13.

unconstitutional, and an unwarrantable interference American writer so little in harmony with the ideas with these prerogatives, and an implied censure upon of the working men's advocates as to pronounce the integrity and propriety of official action. He this proposed change in the law "so impolitic, unsays: There is but one tribunal authorized to make just, and unequal as to verge on folly.' This is the such inquiry, and the governor is unwilling to be language of the ALBANY LAW JOURNAL.” When questioned by any other authority.” A bill to be- we wrote those words we had not the text of the come a law not only needs the governor's signature, bill, and supposed the changes much more sweepbut his indorsement of approval, and delivery to the ing than they are.

The bill does not embrace mesecretary of State. The statute law is as follows: nial or domestic servants. In regard to defective “Every bill thus passed and certified must, before machinery and appliances, and in regard to the neg. it becomes a law, be presented to the governor; if ligence of one delegated with the employer's auhe approves he must sign it; and he shall indorse thority, the bill establishes no new liability. So thereon a certificate of his approbation, and deliver probably, in regard to obedience to rules, by-laws, the same so indorsed to the secretary of State, who or instructions of the employer, if we rightly guess shall certify and indorse upon every such bill the at the meaning of the provision. The new liability day, month and year when the same so became a seems to be in the following cases: first, when the law." All this before it “becomes a law." It is injury arises from the negligence of a superintendtrue the Constitution simply requires the signing, ent; second, when it arises from the negligence of a but the Legislature have added the other requisites, superior servant whose orders the injured one was and they seem just as essential parts of the law as bound to obey; third, when it arises from the neglithe signing. If this is a correct view, there can be gence of any servant having charge or control of no question that the governor's action is justifiable. any signal, points, locomotive engine, or railway Even if it is not a correct view, we do not suppose train. Now considering this new doctrine with rethe governor is compellable as a witness in respect spect to natural persons (and not to corporations, as to his official action. This was held in the late case to whom the common law makes some exceptions of Hartranft's Appeal, 85 Penn. St. 433; S. C., 27 because they can only act by agents), we do not feel Am. Rep. 667. The governor in refusing to obey inclined to retract our former expressions concernthe order, states that the bill was never


ing the impolicy of the bill. Even as to corporaby him.

tions we should scarcely modify them. For exam

ple, suppose it is a rule of a railway company that a The Legislature of Illinois must be an exceedingly

certain train shall leave a certain station at a certain careful and competent body. The Constitution of

hour. The conductor is informed by telegraph from that State enjoins upon the judges the duty of point

headquarters that an extra train is in the way, and ing out every year to the governor such defects and

he must delay ten minutes. He disregards this, diomissions in the laws as they may find to exist, and

rects the leaving as usual, a collision ensues in conof suggesting appropriate forms of bills to cure

sequence, and the engineer is killed. Under the them. Only one report has been made under this

bill, the company would be liable, for the fatality provision, and that was in 1877. One of the judges

occurred in consequence of the act of the superior recommends a modification of the divorce law, lim

servant to whose order the inferior was bound to iting the right of divorce to the single case of adul

conform. Why should this be so? The master is tery. He says: “It is the testimony of careful ob

not negligent. He exercised the precaution of a servers that marital and family duties and rights are

special direction, and the conductor's disregard was the more carefully observed, where divorces are not

an act which he could not foresee nor provide allowed. If the law did not allow a divorce, a vin

against. Why should the engineer not take his culo matrimonii, then would people be more careful

chances, as against the employer? Or let us supabout contracting marriages. Hasty marriages

pose the conductor told the engineer to delay ten would not take place. The laws of the country

minutes, and he delayed only eight, and in conseshould not allow a divorce for any cause. Originally divorces were only allowed ‘for the hardness of

quence the fireman was killed. Under the bill, the

company would be liable, because the fatality ocmen's hearts.' It is not expected that this view,

curred in consequence of the negligent act of one however sound, can prevail. But very many who

in charge of a locomotive engine. And yet, not have carefully considered the subject, do hold that divorce, a vinculo matrimonii, should only be granted

only had the employer been diligent, but so had the

conductor who was set over the engineer. Why for adultery.” Possibly the “careful observers"

should the employer be held responsible? Why above mentioned have never extended their travels

should the servant, who voluntarily incurs the risk so far as France. It is difficult, at all events, to

and is paid for running it, be put on the footing of understand why the denial of divorce should tend

the public? The Legislature acknowledges the to restrain men from committing adultery. One

hardship of the new theory by limiting the recovery would suppose that in very many cases the tendency would be precisely the contrary.

in any case to three years' wages. If the theory is right, why fix any arbitrary limit? The truth is, it

is an unwise and idle tampering with the law out of Speaking of the Employers' Liability Bill, the

tenderness for the working men and forgetfulness of London Law Journal says: " With reference to the justice to employers. We say idle, because the new spirit of the bill it is somewhat singular to find an provisions will be defeated by special contract.



was first ignited, by the mere force of its own gravity,

upon the petitioner's building and destroyed it, the N McMahon v. Henning, U. S. Circuit Court, Kan-connection between cause and effect would have

sas, July 30, 1880, 3 Fed. Rep. 353, it was held been so close and direct that the defendant's that a master is liable for negligence in permitting liability could not have been successfully questhe use of defective machinery, whereby his servant

tioned. So also if the fire had been carried from was injured, although the negligence of a fellow- the place of its origin to the petitioner's building servant contributed to the injury. The court say:

by a train of combustible matter deposited in “The common-law rule has never, to my knowl- its track by the operation of the laws of nature, edge, been carried so far as to permit the master to the petitioner's injury, I think it could not have exempt himself from the consequence of his own been doubted, would have been esteemed the personal negligence by showing that one of his direct result of the defendant's negligence.” Citservants (not the party injured) has been likewise ing Delaware, etc., R. R. Co. v. Salmon, 10 Vroom, negligent.” “The true doctrine of the common

308; S. C., 23 Am. Rep. 214. “These principles law is that the master is liable to his servants, as

must rule this case. Their application is obvious. much as to any one else, for the consequence of his For although water is almost universally used as a own negligence; and it is no defense for him to means to extinguish fire, and it seems at first blush show that the negligence of a fellow-servant (for absurd to say that it can be used for the purpose of which he was not responsible) also contributed to extending it, yet it is true, as a matter of fact, that bringing about the injury. Shearman & Redfield as an agency for the transmission of burning oil, it on Negligence, $ 89; Fifield v. Northern R. Co., 42 is just as certain and effectual in its operation as N. H. 225; Hough v. Railway Co., 100 U. S. 213; the wind in carrying flame, or a spark, or combustiCayzer v. Taylor, 10 Gray, 274; Paulmier v. Erie R. ble matter in spreading a fire. In keeping up the Co., 5 Vroom, 151, 157. In Cayzer v. Taylor the continuity between cause and effect, it may be just Supreme Court of Massachusetts state the rule as as certain and effectual in its operation as any other follows: “But we are not prepared to say that if material force.” The court noticed and disapproved one uses a dangerous instrumentality, without the Hoag v. Lake Shore & Michigan S. R. Co., 85 Penn. safeguards which science and experience suggest or St. 293; S. C., 27 Am. Rep. 653, & case exactly like the positive rules of law require, he is not responsi- the principal case, and also the Ryan case, 35 N. Y. ble for an injury resulting from such use because the 210, and the Kerr case, 62 Penn. St. 353; S. C., 1 negligence of one of his servants may have con- Am. Rep. 431, as “standing opposed to both pretributed to the result, or because a possible vigilance cedent and principle." of the servant might have prevented the injury.' That was a case in which a servant sued his master

The case of English v. English, Court of Errors for injuries from the collapse of a steam boiler used and Appeals, 32 N. J. Eq. 738, should be read in in the defendant's manufactory, in which the plaint-connection with Commonwealth ex rel. Drummond v. iff was employed.” This is consistent with Booth v.

Ashton, ante, 183, and Mckim v. McKim, 12 R. I. Boston & Albany Railroad Co., 73 N. Y. 38; 8. C.,

462; 21 Alb. L. J. 343, as affording considerable 29 Am. Rep. 97, where the injury was caused by the

countenance to seceding wives and mothers. The negligence of the company in not furnishing a suffi

wife left her husband in 1875, on account of his cient number of brakemen on a train, and the neg

"abuse of marital rights,” taking with her their ligence of the engineer in running the train; and

two children, a boy aged 6, and a girl aged 4 years. with Stetter v. Chicago & N. W. R. Co., 46 Wis. 497; She petitioned for a divorce, but this was denied on 8. C., 29 Am. Rep. 102, note, where the injury was

his promise of amendment. Ho entreated her to caused by the subsidence of an unsafe track, and

return to him, but she refused. She was able and the negligence of the conductor in disregarding his willing to maintain and educate the children, and instructions to run slowly over it.

they preferred to remain with her. The father was

sober, moral, industrious, and of pecuniary ability. In Kuhn v. Jewett, Receiver, 32 N. J. Eq. 647, a The boy was of a delicate constitution. IIeld, that railway train laden with petroleum was wrecked, the wife's acts did not amount to such "misconowing to the defendant's negligence, and the petro- duct as to deprive her of the custody of the chilleum escaping, took fire, ran into a brook, and was dren for the present.” The court said: “From floated against and ignited the plaintiff's barn some every point of view, the cause has given to every distance away. It was held by the vice-chancellor member of this court an unusual degree of anxiety that the defendant was liable. The court said: and concern in its decision.” The decision was “There can be no doubt, I think, if in this instance based on the supposed welfare of the children, the the flames of the burning oil had been carried by parents being on an equality. The court strongly the wind directly from the point of collision to the intimated that if the boy were of sufficient age and petitioner's building, and it had thus been set on health to enter upon a course of business training, fire and destroyed, that the injury would in judg- the father would be awarded his custody. Dixon, ment of law have been the natural and direct or J., dissented, and in one sentence expresses the danproximate result of the collision. So, too, if the gerous tendency of this sentimental course of deburning oil had descended from the point where it cision: “If a wife may, in the absence of legal

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justification, remove herself and her children from be some semblance of reason in this rule, if there their father's domicile, and fix their residence in a had been service of process, for then the court would place where he may not abide, and still stand before have acquired jurisdiction, and it would be impolithe law upon an equal footing with him as to their tic, perhaps, to allow the defendant to escape juriscustody, then is the headship of the husband and diction by denying the authority of a responsible futher no longer legally recognized."

attorney. The danger of a false denial of the at

torney's authority, suggested in the principal case, REMEDY AGAINST JUDGMENT SUFFERED

would seem rather small when there never had been BY UNAUTHORIZED ATTORNEY. service of process, or knowledge by the defendant

of the pendency of the action, or any indebtedness, N Everett v. Warner Bank, Supreme Court of New as in that case. But in such a case as this we can

Hampshire, June, 1878, 11 Rep. 275, the plaint- not conceive any reason why the defendant, rather iff sued for an injunction to restrain the enforce- than the plaintiff in the original action, should be ment of a judgment obtained against him without ser- put to the trouble and expense of pursuing the atvice of process, or his knowledge of the commence- torney, nor can we see any reason for distinguishing ment or pendency of the action, upon the unauthor- between a case where the defendant was within the ized appearance of an attorney, and without any State and a case where he was non-resident at the cause of action. The answer admitted those alle- time of the suit and appearance. The right of a gations, and alleged that the attorney who thus ap- court to render judgment rests upon the acquiring peared was responsible. The bill was dismissed, of jurisdiction, and not upon the mere ability to acupon the authority of Bunton v. Lyford, 37 N. II. quire jurisdiction. 512, and Smyth v. Balch, 40 id. 363. The court said: It may be that this holding is put on the ground “We are not unmindful that the weight of author- that this suit was a collateral proceeding, and not ity in the American courts at the present time seems a direct application to the court which rendered the to be against the doctrine of those cases. The rule judgment. It was held, in Brown v. Nichols, 42 N. is not in harmony with the general law of agency, Y. 26, that such a judgment could not be collaterfor the reason that the legal presumption as to the ally attacked, but Grover, J., dissented, and Foster authority of an attorney differs from that of other and Smith, JJ., said they would join him if it were agents." “ The opposite party is guilty of no neg- a new question, and in Denton v. Noyes, 6 Johns. ligence in relying upon the appearance of the attor- 296, it was held, Van Ness, J., dissenting, that such ney as authorized, and is entitled to reasonable pro- a judgment would not be set aside even upon direct tection against such damages as he might suffer, if application, if the attorney were responsible. But the appearance, which the law presumes to be by the court let the defendant in to defend. This case authority, was held void.” “To hold the unau- was questioned in Allen v. Stone, 10 Barb. 547, but thorized appearance void in all cases would not give acquiesced in, in Ellsworth v. Campbell, 31 Barb. reasonable protection to the party against whom the 134. In Meacham v. Dudley, 6 Wend. 514, the court appearance is made.'

“If it is held void, the at- say the rule in Denton v. Noyes is hard, and where torney would be liable to the party against whom the attorney is irresponsible, they will let the defendhe appeared. If it is held valid, he would be liable ant in to defend. In Ferguson v. Crawford, 70 N. to the party for whom he assumed to appear. Why Y. 253; S. C., 26 Am. Rep. 589, it was held that a should one party, rather than the other, be compelled domestic judgment might be collaterally attacked to seek his remedy against the attorney ? It may where the appearance was forged, and Denton v. be suggested whether there is not greater danger of Noyes and Brown v. Nichols were recognized and injustice being done by parties falsely denying the distinguished. authority of attorneys to appear for them, than is The doctrine of the principal case was held in St. to be apprehended from unauthorized appearances Albans v. Bush, 4 Vt. 58; Abbott v. Dutton, 44 id. by attorneys; and if the danger of a false denial 546, and Newcomb v. Peck, 17 id. 302, all cases of of authority is vastly greater than the danger of an collateral attack, the latter a suit on a judgment of unauthorized appearance, whether justice and sound another State. policy do not require, that when the attorney is re- In Shelton v. Tiffin, 6 How. 163, it was held that sponsible, the party for whom he appeared, rather a judgment, obtained by an unauthorized appearthan the other party, should be put to his action ance for a non-resident, could be collaterally atagainst the attorney. The rule as adopted in this tacked, and is a nullity. “An appearance by counState has always been distinctly recognized as an sel under such circumstances,” say the court, “ to exception founded on the general ideas of justice the prejudice of a party, subjects the counsel to and policy entertained by the court in this particu- damages; but this would not sufficiently protect the lar class of cases."

rights of the defendant. He is not bound by the It seems a singular idea that a party, not served proceedings, and there is no other principle which with process, ignorant of the pendency of the ac- can afford him adequate protection. The judgment tion, and not indebted to the plaintiff, should be

must be considered a nullity." He" bound to pay a judgment, obtained upon the unau- not amenable to the jurisdiction of the court, and thorized appearance of an attorney, because the at- did no act to authorize the judgment. He cannot, torney is responsible, and should have no indem- therefore, be affected by it, or by any proceedings nity except by resort to the attorney. There would under it."





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