shall assault or strike another, by fine to the Commonwealth, not exceeding twenty shillings, and require sureties for good behavior, or bind the offender to appear before such courts as have jurisdiction of his offence.1

Justices of the peace have various miscellaneous powers and duties, an enumeration of which does not come within the plan of this treatise, but which may be easily learned from the several statutes prescribing them.

CHAPTER IV.

ATTORNIES.

At common law the plaintiff and defendant could generally appear in court only in propria persona; and no one was allowed to appear for another, except by the king's special permission, by writ or letters patent; by reason whereof, says Lord Coke, there were but few suits. But a corporation aggregate not being capable of a personal appearance, could only appear by an attorney, who must have been appointed under the common seal.2

By Stat. 13 Anne, ch. 1. re-enacted by Stat. 1785. ch. 23. it is provided that parties may manage their causes for themselves, or by the assistance of such counsel as they shall see fit to engage, each party, however, being restricted to two, so "that the adverse party may retain others of them."-This statute having perhaps been construed to restrict parties to an appearance by those who were known as attornies, the Stat. of 1789. ch. 58. was passed, empowering every citizen to appear by any person of a decent and good moral character, whom he shall specially appoint by letter of attorney.

The only exceptions to the general rule allowing all parties to appear by attorney, are the cases of infants, femes covert, and persons non compos mentis. Infants must sue by prochein amy, or guardian, and defend

1 Co. Litt. 128 a. 1 Mod. Rep. 244. Jackson, ex. d. Smith et al. v. Stewart, 6 Johns. Rep. 34.

2 Com. Dig. tit. Pleader, 2 B. 2. Co. Litt. 66. b.

Married

by guardian and not by prochein amy.1 women must appear in person, for the purpose of pleading coverture.2 In the English practice, it is said, that idiots must appear, either to sue or to defend, in person, but that lunatics must appear by guardian if within age, and by attorney, if of full if of full age. In Mitchell et al. v. Kingman,1 it was held that a defendant who was non compos had no right to appear and plead by attorney- that a plea so made would be treated as a nullity, and if the fact appeared at the time of trial, a guardian would be appointed who might plead de novo.

By Stat. 1785. ch. 23. no person shall be admitted an attorney in any court in this Commonwealth, unless he is of good moral character, well affected to the constitution and government of the Commonwealth, and hath had opportunity to qualify himself for the office, and hath made such proficiency as will render him useful therein.

The rules regulating the admission of attornies in the Supreme Court and Court of Common Pleas will be found in the Appendix.5

Attornies are thus officers of the court; they are required to take an oath of fidelity to the courts as well as to their clients, and oaths to support the constitutions respectively of the United States and of the Commonwealth. As such officers, they are subject to the control and superintendence of the court, and may

12 Saund. 117. f. note 1. 2 Saund. 212. a. note 4. Miles v. Boyden. Exor. 3 Pick. Rep. 213.

2 Oulds and al. v. Sansom, 3 Taunt. Rep. 261.

3 Beverly's case, 4 Co. 124. 2 Saund. 333. note 4.

5 Pick. Rep. 431.

'Reg. Gen. Supreme Judicial Court, Appendix A. Reg. Gen. Court of Common Pleas, Sec. 1, 2, 3, 4, 5, 6. Appendix B.

be compelled to perform their duties, and punished for misdemeanors and malpractice committed in their official capacity.

The members of the profession in England are divided into distinct classes, entirely separate from each other; the attornies in the common law courts, and solicitors in equity, manage the commencement and preparation of suits, and conduct them in all that portion which is done out of court or on the record; while the barristers, serjeants, and counsel are employed in conducting the oral business in court, making motions, and arguing causes. The two functions cannot be united in the same person-an attorney cannot become a barrister till his name is stricken from the roll of attornies. In this State there is no such division except that in the Supreme Court attornies are not permitted to practise as counsellors until after two years from their admission as attornies. All counsellors are of course attornies. The attornies of the Court of Common Pleas are also counsellors of that court.

SECT. I. WARRANT OF ATTORNEY.

It was formerly necessary that the appointment of an attorney in any court should be in writing, and attornies were required under a penalty, to file their powers in court. The practice not only of filing, but even of taking, the warrants of attorney, is said to have been for the most part long since disused, and a mere parol retainer is deemed a sufficient authority.'

If the defendant suspects that the suit has been commenced without the authority of the plaintiff on

11 Archb. Pract. 22.

the record, he may call on the plaintiff's attorney for proof of his authority. By the 27th rule of the Court of Common Pleas, the attorney's right to appear cannot be questioned except at the first term;' but this must be understood to mean, that the defendant shall not, after that time, call on the attorney to show his power, and not that the defendant may not show his want of power. He may prove affirmatively at any time that the suit is prosecuted without the consent of the plaintiff, and it will be dismissed. In First Parish of Sutton v. Cole, it was held that the defendant, by not disputing before plea filed, the authority of the plaintiff's attorney, was precluded from afterwards contending that the plaintiffs were not regularly organized as a corporation, or that the meeting at which the proceedings were directed to be commenced, was not regular and valid.

2

The authority may be given by a formal letter of attorney under seal, or by a written retainer, or it may be shewn by proof of any act implying it, or recognizing the suit, as that the plaintiff himself endorsed the writ, or that the attorney has possession of the instrument upon which the suit is brought, if it be a contract with the plaintiff himself. By the rule above referred to, a declaration by the attorney himself that he was employed by the party himself, or by some one whom he believed was duly authorized to employ him, shall be deemed to be evidence of an authority to appear. But this evidence must be considered as merely prima facie, for the defendant may undoubtedly disprove the fact or show a disclaimer by the plaintiff. It may well be questioned whether the rule itself be founded in good policy, and whether the exercise of it comes within the powers of

1

1 Appendix B.

23 Pick. Rep. 232.