[2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb. 349, 354, 387.
[3] See Austin's case, 5 Rawle, 203. "An attorney at law," says C. J. Gibson, "is an officer of the court. The terms of the oath, exacted of him at his admission to the bar, prove him to be so;" "you shall behave yourself in your office of attorney," &c. Again: it is declared in the Constitution, Article 1st, sec. 18 (Art. 1, sec. 19, of the amended Constitution of 1838), that "no member of Congress, or other person holding any office (except attorney at law, and in the militia), shall be a member of either House," &c., which is a direct constitutional recognition. Prior to the Act of 14th April, 1834, which expressly required from them an oath to support the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania, attorneys at law were invariably held to be within the provisions of Art. 6, sect. 3, of the Constitution of the United States, and of Art. 8, of the Constitution of Pennsylvania, requiring all officers, executive and judicial, to take the oath to support those constitutions respectively. In Wood's case (1 Hopkins, 6), solicitors in chancery were held to be officers, within the meaning of a similar clause in the Constitution of New York. "The admission of an attorney, solicitor, or counsellor," says the opinion in that case, "is a general appointment to conduct causes before the courts: this station, thus conferred by public authority, has its peculiar powers, privileges, and duties, and thus becomes an office in the administration of justice." Leigh's case (1 Munford, 468), in which it was held, that attorneys are not officers, within the meaning of the statute of Virginia, requiring all persons holding any office, or place, under the commonwealth, to take an oath against duelling, does not perhaps conflict with this view. The case of Byrne's Admr's v. Stewart's Admr's (3 Desaus. 478), may, however, be found upon examination somewhat at variance—not the decision itself, but the views expressed by Chancellor Watres in his opinion. The case simply decided what would seem unquestionable, that the legislature had a right to prohibit any public officer, judicial or otherwise, from practising as an attorney or solicitor. The Chancellor said, "He (a solicitor) can he considered in no other light than that of a private agent for the citizens of the country, who may employ him to do their legal business in the courts; and although the law requires of him certain qualifications, and he receives a license from the judges, yet his office is no more a public one, than would be any other profession or trade, which the legislature might choose to subject to similar regulations, and which is the practice in many other countries. It cannot be doubted, that a man's trade or profession is his property; and if a law should be passed avowedly for the purpose of restraining any member of this bar, who was not a public officer, from exercising his profession, I should declare such law void." This is to assume high ground; but the idea that a man's profession or trade cannot be constitutionally interfered with by legislative enactments, seems scarcely tenable, and especially, so far as the profession of the law is concerned, in view of the absolute power with which every court is clothed, both as to the admission of their attorneys, and forejudging or striking them from the roll. Act of 14th April, 1834, s. 73 (Pamphlet Laws, 354). Courts of record and of general jurisdiction, are vested with exclusive power to regulate the conduct of their own officers, and in this respect their decisions are put on the same footing with that numerous class of cases, which is wisely confided to the legal discretion and judgment of the court, having jurisdiction over the subject-matter. Commonwealth v. The Judges, 5 Watts & Serg. 272; Ex parte Burr, 9 Wheat. 531; Ex parte Brown, 1 Howard (Miss.) Rep. 306; Perry v. State, 3 Iowa, 550; In the matter of Wills, 1 Mann, 392. "The power is one which ought to be exercised with great caution, but which is, we think, incidental to all courts, and necessary for the preservation of decorum and for the respectability of the profession." Marshall C. J. 9 Wheat. 531.
[4] Per Gibson, C. J., in Austin's case, 5 Rawle, 204.
[5] The exact weight of one hundred silver dollars of the old coinage is 85.9375 ounces; of the new coinage, 80 ounces.
[6] Ex parte Carter, 1 Philada. Rep. 507. Blaike's Lessee v. Chambers, 1 Serg. & Rawle, 169.
[7] Court and juries have their respective spheres assigned to them, within which each is to act and move, without encroaching upon the jurisdiction or province of the other. In order, then, that jurors as well as others may know that the direction and decision of the court, on any question of law arising in the course of the trial of an issue of fact, is not to be disregarded, and that a verdict given against such direction, whatever it may be, can never avail anything, unless it be to occasion additional delay, trouble, and expense to the parties, as also to the public, the course of the court is to set the verdict aside, and to order a new trial. And a court, from whose decisions on questions of law, an appeal lies, by writ of error or otherwise, ought never to depart from this course; otherwise the party against whom the verdict is given loses the benefit of such appeal, and of having the question decided by the Appellate Court, which would be a most unjust and illegal deprivation of his right. Per Kennedy, J., in Flemming v. Marine Ins. Co. 4 Whart. 67. After two concurring verdicts against the direction of the court in point of law, a new trial will still be awarded. Commissioners of Berks County v. Ross, 3 Binn. 520. "Principles the most firmly established might be overturned, because a second jury were obstinate and rash enough to persevere in the errors of the first, in a matter confessed by all to be properly within the jurisdiction of the court; I mean the construction of the law arising from undisputed facts." Per Tilghman, C. J., Ibid. 524. It is not necessary to refer to the numerous cases, both in the English and American courts, which accord with these principles. A judicious selection of the leading ones is to be found in the note to 1 Wharton's Troubat & Haly, 529. The text and the note are confined, of course, to civil cases.
[8] Burnet's Life of Sir Matthew Hale, 72.
[9] An attorney is not answerable for every error or mistake; he ought not to be liable, in cases of reasonable doubt. Pitt v. Yalden, 4 Burrows, 2060. He shall be protected, when he acts with good faith, and to the best of his skill and knowledge. Gilbert v. Williams, 8 Mass. 57. The want of ordinary care and skill in such a person is gross negligence. Holmes v. Peck, 1 Rhode Island, Rep. 245; Cox v. Sullivan, 7 Georgia, 144; Pennington v. Yell, 6 Engl. 212. As between the client and the attorney, the responsibility of the latter is as great and as strict here as in any country when want of good faith or attention to the cause is alleged; but in the exercise of the discretionary power usually confided in this country, and especially when the client resides at a great distance, an attorney ought not to be held liable where he has acted honestly and in a way he thought was for the interest of his client. Lynch v. The Commonwealth, 16 Serg. & Rawle, 368; Stakely v. Robison, 10 Casey, 317. When, however, an attorney disobeys the lawful instructions of his client, and a loss ensues, for that loss the attorney is responsible. Gilbert v. Williams, 8 Mass. 57. If the holder of a note place it in the hands of an attorney-at-law, with instructions to bring suit upon it, and the attorney, acting under the honest impression that he would best promote the interests of his client by not bringing suit immediately, omits to do so, and the money is afterwards lost by the insolvency of the maker, the attorney is liable in an action against him; and the measure of damages is what might have been recovered from the maker of the note, if suit had been brought when the note was placed in the hands of the attorney for collection. Cox v. Livingston, 2 Watts. & Serg. 103; Wilcox v. Plummer, 4 Peters, 172. But a client has no right to control his attorney in the due and orderly conduct of a suit, and it is his duty to do what the court would order to be done, though his client instruct him otherwise. Anon., 1 Wendell, 108.
[10] An attorney is not compelled to appear for any one unless he takes his fee or backs the warrant. Anon., 1 Salk. 87. The attorney cannot determine the relation himself, to his client's detriment. Love v. Hall, 3 Yerger, 408. When a solicitor appointed by a party has acted as such, he cannot be displaced by the appointment of another, without an order of the court. Mumford v. Murray, 1 Hopkins, 369. After an attorney has entered his name upon the record, he cannot withdraw it without leave of the court; and until so withdrawn the service of a citation upon him in case of appeal is sufficient. United States v. Curry, 6 Howard, U. S. Rep. 106.
[11] A counsel, attorney, or solicitor, will in no case be permitted, even if he should be willing to do so, to divulge any matter which has been communicated to him in professional confidence. This is not his privilege, but the privilege of the client, and none but the client can waive it. Jenkinson v. The State, 5 Blackford, 465; Benjamin v. Coventry, 19 Wendell, 353; Parker v. Carter, 4 Munf. 273; Wilson v. Troup, 7 Johns. Ch. Rep. 25; Crosby v. Berger, 11 Paige, 377; Bank of Utica v. Mersereau, 3 Barbour Ch. Rep. 528; Aiken v. Kilburne, 27 Maine, 252; Crisler v. Garland, 11 Smedes & Marshall, 136; Chew v. The Farmers' Bank of Maryland, 2 Maryland Ch. Decis. 231. It will be found in some of these cases that though the counsel declined to be engaged for the client, yet the facts communicated were held confidential; the only exception recognized being where a purpose to perpetrate in futuro a felony or an action malum in se was disclosed. Bank of Utica v. Mersereau, 3 Barbour Ch. Rep. 377. In Moore v. Bray, 10 Barr, 519, it was held that communications of the object, for which an assignment of a mortgage was made, to a counsel concerned for the assignee, were privileged; although no question then arose as to the object of the assignment, and the counsel considered the communication in the light of a casual conversation. "The circle of protection," said Bell, J., "is not so narrow as to exclude communications a professional person may deem unimportant to the controversy, or the briefest and lightest talk the client may choose to indulge with his legal adviser, provided he regards him as such at the moment. To found a distinction on such a ground would be to measure the safety of the confiding party by the extent of his intelligence and knowledge, and to expose to betrayal those very anxieties, which prompt those in difficulty, to seek the ear of him in whom they trust in season and out of season."