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ANDERSON v. GEORGE.

(Court of King's Bench, 1757, 1 Burrows, 352.)

Upon a rule for the plaintiff to shew cause "Why a verdict obtained by him for £16. should not be set aside, and a new trial ordered upon payment of costs."

The case appeared to be, That the plaintiff had sold goods to the defendant who paid for them by a promissory note of one Hopley; which the defendant indorsed. The plaintiff demanded the money of Hopley: but indulged him with further day of payment, several times; till Hopley broke.

The only dispute between the parties was, "Which of them ought to bear the loss of this note." For the plaintiff was paid; if the loss ought to fall upon him, through his neglect or indulgence in giving further credit to Hopley.

There were two counts in the declaration: one, for goods sold; the other against the defendant as indorser of the promissory note.

When the cause came on to be tried, though both parties came to try the real merits of the question between them, viz. "Which should bear the loss of the note occasioned by Hopley's failure;" and the plaintiff's agents had the note in court; yet, finding upon their own evidence, "that the plaintiff had given repeatedly further credit to Hopely," they resorted to a trick, and rested their case upon proving the sale and delivery of the goods, which never was disputed. The defendant could not produce the note: it was in the plaintiff's custody. Relying upon its being the only ground of the plaintiff's case, the defendant had not given him notice "to produce it." The count stating it could not be given in evidence; and the defendant had not intitled himself to prove the contents, for want of notice to produce it; Lord Mansfield told them, at the trial, it was an improper artifice; that no verdict could stand which was so obtained. But the plaintiff refused to produce the note; and had a verdict of course.

It was now contended for the plaintiff that the verdict was regular, and the plaintiff in no fault: for, without notice, he was not obliged to produce the note. Therefore the verdict ought not to be set aside. THE COURT thought the plaintiff had taken an unfair advantage, contrary to justice and good conscience. That the rules of practice must be general: but he who abused them in a particular case, should not shelter a trick by regularity. The plaintiff did not want notice to produce a note he had in court, and which he had laid in the declaration as his ground of action. Besides, he took a verdict for the price of the goods; though he had received satisfaction, the evidence of which was in his own custody, and suppressed.

They not only set aside the verdict; but set it aside without payment of costs and declared, "the next time that a party should obtain a verdict in like manner, by an unfair unconscionable advantage, with

out trying the real question, they would set aside the verdict, and make him pay the costs."

A new trial being ordered, this cause was tried at Guildhall, the sittings after this term: and the defendant had a verdict upon the merits, to the satisfaction of every body; the case being clear beyond a doubt.60

60 "It were to bee wished Atturnies would practice more fairely, and give rules legally, and call one to another for pleas and answers, and not to lie upon advantages, and snap up Judgments, as some doe, without feare or wit, whereby they both trouble the Court to undoe what they have so unduely done, and put their Clients to needlesse expences: Whereas, if they should proceed fairely and deliberately, they might bring honour to the Court,_reputation to themselves, and expedition to their Clients' causes."-Thomas Powell, The Attourney's Academy (1647) p. 42.

"Judge Brewer cites a striking example of the sort of spoke which the trickster can surreptitiously insert in the wheels of justice. A witness testified in a certain case that a person named Mary was present when a particular conversation took place, and the question was asked, 'What did Mary say?' This was objected to and after some discussion the judge ruled out the question. An 'exception' to this decision was immediately taken, and on appeal the higher court reversed the verdict and ordered a new trial on the ground that the question should have been answered. At the second trial the same inquiry was propounded and elicited the information that Mary said nothing!"-Frederick Trevor Hill, Legal Defeaters of the Law, 2 Putnam's Monthly, 293, 295, 296.

"Fidelity to his client is one of the first requisites in the character of an honorable practitioner at the bar. That fidelity requires that he should maintain all the just rights of his client; but it extends no further. It will not justify any attempt to evade the fair operation of the law, or to impede the administration of justice. A fault on either side of the true line of honorable professional conduct will equally meet the decided reprehension of the court.' -Cranch, C. J., in Ex parte G. L. Giberson, 4 Cranch, C. C. 503, 506, Fed. Cas. No. 5,388 (1835).

In contrast to the reliance on technicalities in Anderson v. George, supra, note the action of Abraham Lincoln in a certain case: "In these early days Mr. Lincoln was once employed in a case against a railroad company in Illinois. The case was concluded in his favor, except as to the pronouncement of judgment. Before this was done, he rose and stated that his opponents had not proved all that was justly due to them in offset, and proceeded to state briefly that justice required that an allowance should be made against his client for a certain amount. The court at once acquiesced in his statement, and immediately proceeded to pronounce judgment in accordance therewith. He was ever ready to sink his selfish love of victory as well as his partiality for his client's favor and interest for the sake of exact justice."-Ward Hill Lamon, Recollections of Abraham Lincoln (1895) pp. 19, 20.

"The law does not ordinarily concern itself with questions of mere morality. Its casuistry is of a sternly practical kind, which often recognizes as legally right that which the judgment of the conscience must condemn as wrong. And thus instances not infrequently occur in which it may with apt propriety be said that it is morally wrong for a man to insist upon his legal rights."-Horace K. Tenney, A Rule of Law Which is a Credit to the Bar, Illinois State Bar Assoc. Rep. 1901, Pt. II, pp. 95, 96, 97.

"The question arises how far counsel may avail themselves of mere technicalities of law to gain their cause. We quite agree with Judge Sharswood that here very much depends on his estimate of the cause itself-whether in his conviction his client's cause is just or unjust. It may happen that a client whose cause is righteous is unable to command the evidence which would prove it; nay, that such evidence, though otherwise at command, is ruled out by these very legal technicalities. In such a case he is justified in parrying his adversary and putting him at bay by every resource, not contrary to

VI. THE TRial of the Cause

(A) General Principles

A. B. A. CANONS.

15. HOW FAR A LAWYER MAY GO IN SUPPORTING A CLIENT'S CAUSE. Nothing operates more certainly to create or to foster popular prejudice against lawyers as a class, and to deprive the profession of that full measure of public esteem and confidence which belongs to the proper discharge of its duties than does the false claim, often set up by the unscrupulous in defense of questionable transactions, that it is the duty of the lawyer to do whatever may enable him. to succeed in winning his client's cause.*

It is improper for a lawyer to assert in argument his personal belief in his client's innocence or in the justice of his cause.

The lawyer owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation

truth and honesty, which legal technics afford. He may not falsify. He may not, for example, procure delays by any false statements by himself or his clients as to the materiality of absent witnesses, or other difficulties. But he may make the most of whatever truth, fact or law, will most tend to thwart the adverse party. He may require him to prove every iota of his case, however technical and practically unimportant. But it is quite otherwise if he be convinced that justice is against him. While he may insist that the adverse claim be legally established, he is not justified in pressing mere technicalities to the utmost against it."-Unsigned Review in 43 Princeton Rev. 286, 302.

*Horace Binney wrote of himself: "I may say to my children that I never knowingly committed an injustice towards a client, or the opposite party. I at all times disdained to practice any strategem, trick or artifice for the purpose of gaining an advantage over my adversary; and unless I thought him unfair, I was generally willing that he should see all my cards while I played them. I can truly say that I am not conscious of having lost anything by this candour, but, on the contrary, have repeatedly gained by it. If my client was at any time suspected, I had no reason to think that I was by either the court or the bar; and how many balancing cases, in the course of thirty-five years practice, this sort of reputation assisted, I need not say." -Charles Chauncey Binney, The Life of Horace Binney (1903) p. 443.

of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client."1

20. NEWSPAPER DISCUSSION OF PENDING LITIGATION. Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the Court; but even in extreme cases it is better to avoid any ex parte statement.62

B. B. A. CANON.

XXV." RIGHT OF LAWYER TO CONTROL THE INCIDENTS OF THE TRIAL. The lawyer must be allowed to decide as to incidental matters pending the trial not affecting the merits of the cause nor prejudicial to the rights of the client, such as reasonable accommodation to op

61 "Every pleader who acts in the business of another should have regard to four things: First, that he be a person receivable in court. * * Secondly, that every pleader is bound by oath that he will not knowingly maintain or defend wrong or falsehood, but will abandon his client immediately that he perceives his wrongdoing. Thirdly, that he will never have recourse to false delays or false witnesses, and, never allege, proffer, or consent to any corruption, deceit, lie, or falsified law, but loyally will maintain the right of his client, so that he may not fail through his folly, or negligence, nor by default of him, nor by default of any argument that he could urge, and that he will not by blow, contumely, brawl, threat, noise, or villain conduct disturb any judge, party, serjeant, or other in court, nor impede the hearing or the course of justice. Fourthly, there is the salary. * A pleader is to be suspended if he is attainted of receiving a fee from both sides in one cause, or if he says or does anything in contempt of the judge. * * * "—The Mirror of Justices, Book II, chapter 5, 7 Selden Soc. Pub. 47, 48.

"And so, as it seems to me, we may sum up the whole matter of Professional Ethics, so far as the duties of the advocate are concerned, in the simple proposition that we are to present the facts of our side correctly, and quote the law correctly, and then make war for our client to the best of our ability in accordance with the rules of honorable warfare."-William Wirt Howe, Professional Ethics, 5 Va. Law Reg. 507, 518.

62 "The Board [of Managers of the Chicago Bar Association] unqualifiedly condemns the trial of cases in the newspapers and the practice of seeking the lime light through inspired interviews. The better rule undoubtedly is for the lawyer who desires to maintain a scrupulous regard of the professional proprieties, to avoid all such meretricious publicity and let his professional work speak for itself. We recognize, however, that there are special circumstances where the client has the right to demand a dignified conservative statement of his attitude, and a clear explanation of his position, motives and intentions in the public press, and in such exceptional cases, if his client requests, it is the lawyer's duty to prepare such statement or explanation."— Edgar Bronson Tolman, President, in Chicago Bar Association Annual Reports (1912) p. 4.

63 A revision of A. B. A. Canon 24.

posing counsel, agreeing to an extension of time for signing a bill of exceptions, filing or answering interrogatories, and the like. In such matters the client has no right to demand that his counsel shall be illiberal, or do anything repugnant to his own sense of honor and propriety."

ANONYMOUS.

(Supreme Court of New York, 1828. 1 Wend. 108.)

On a motion to set aside a default for not pleading where a sufficient excuse was offered entitling the party to be let in on payment of costs, and where the attorney who had obtained the default declined opening it, on the ground that his client had instructed him not to waive the default, the court observed that such instructions were no excuse to an attorney. The client has no right to control him in the due and orderly conduct of the suit; that if the case was of such a nature as that there could be no doubt in the mind of the attorney, that according to the settled rules of practice the default would be opened by the court on the usual terms, it was his duty, when applied to for that purpose, to open the default, any directions of his client to the contrary notwithstanding, and not compel the party to apply to the court for relief.65

64 "Let me suppose a case for illustration-a very possible case under recent conditions. Following a decision of the Supreme Court, the Circuit Court refuses to consider a bill of exceptions as not appearing to have been presented to the trial judge within the time required, and, no error otherwise appearing, renders judgment for the defendant in error. The plaintiff in error promptly files a petition in error in the Supreme Court, but, through a mistake in the dates, fails to file a printed record in that court within sixty days, so that his case is dismissed. Meantime the Supreme Court overrules its for mer decision, and it becomes apparent that, if this case is ever heard in the Supreme Court, the judgment by the circuit court must be vacated and the cause remanded to that court with instructions to consider the questions arising on the bill of exceptions. A motion to reinstate the case in the Supreme Court would perhaps be overruled, but if consented to by the defendant in error it would be allowed. Ought the defendant's counsel to consent? If his client refuse to allow his consent, what should he do? His client has gained an unjust advantage by error and mistake, and by consenting that the case should be reinstated in the Supreme Court the parties would be restored to their respective positions when the original error occurred in the circuit court. What is his duty? Now I insist that no lawyer has the right to knowingly aid in working an injustice; and no client has the right to demand of his counsel that he will sacrifice his own honor and fidelity to him." -W. Z. Davis, Relation of the Bench and Bar, 21 Ohio St. Bar Assoc. Rep. (1900) pp. 190, 200, 201.

65 See Levy v. Brown, 56 Miss. 83, 89 (1878).

"It is well settled that, short of a compromise of a client's claim or a confession of judgment, the authority of counsel in a case extends generally to all the customary incidents of litigation and embraces all agreements, stipulations, and admissions appertaining to its conduct through the courts."Hook, J., in Christy v. Atchison, T. & S. F. Ry. Co., 233 Fed. 255, 256, 147 C. C. A. 261, 262 (1916). On the implied authority of counsel in conducting litigation, see 132 Am. St. Rep. 148, note. See, also, 37 Am. Dec. 167, note.

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