TION AND OF ACTIONS. attorney in the cause is irregular, and the plaintiff is not bound PROSECU to accept such notice or plea. But where a plea had been put in by a new attorney without any order for changing the attorney, it was held by the court of common pleas, that the plaintiff waived the irregularity by taking the plea out of the office, and keeping it. An attorney may also be changed Change by by his own consent; for this purpose the consent should be filed; a rule entered by the new attorney for the substitution, and notice thereof given to the opposite party.23 consent. death, &c. It is provided by statute that, "When any attorney or so- Notice of licitor shall die, be removed or suspended, or cease to act as such, the person for whom he was acting shall be notified to appoint another attorney or solicitor, in such manner as the court shall direct, at least thirty days before any proceedings shall be had against such person." "24 Thirty days after such notice, if no new attorney be appointed, the opposite party may of course proceed in the action 25 if a new attorney be appointed, notice of such appointment must be given, before he can take any steps in the cause.26 The notice required by the statute must be given, although the death of the attorney may be known to his client; nor is a constructive notice sufficient, as a notice that a certain motion will be made, or other step taken in the cause:27 but it need not be by rule of court.28 The service of the notice must be personal, or such as the Service. court may deem tantamount; and cannot be made by putting up the notice in the clerk's office.29 The In general, with cease after Attorney's powers, when determined, and extent.] power of an attorney, for most purposes, determines the judgment; and formerly, although he might have issued powers judgment, PROSECU- execution and received the debt, yet it seems to have been TION AND OF ACTIONS. May issue execution, ledge satis faction. Effect. 31 DEFENCE doubtful whether he could have acknowledged satisfaction on record without a special authority for that purpose. It is now however provided by statute that the attorney on record of the party in whose favour a judgment has been rendered, And acknow- may acknowledge satisfaction of the same, in the same manner and with the like effect as the party himself: but it is further provided that "such satisfaction shall not be conclusive against the party in whose favour the judgment was rendered, in respect to any person to whom actual notice of the revocation of the authority of such attorney shall have been given, before any payment on such judgment shall have been made, or before any purchase of property bound by such judgment shall have been effected." The next section of the same title makes it the duty of an attorney to acknowledge satisfaction of a judgment, when the amount thereof is received Limitations by him, on payment of the fees by the defendant.34 But an attorney cannot discharge a defendant from execution on a ca. sa. until the money is paid:55 and his authority does not extend to a scire facias against the bail, or to revive a judgment; for this is a new action.36 And execution, or a scire facias or a writ of error may be sued out by a different attorney, without any rule or notice of a motion to change the attorney. An attorney cannot compromise the rights of his client, although it has been held that he may submit them to arbitration; and he may give a cognovit,40 or enter a remittitur damna11 or a discontinuance:42 but he cannot enter a of power. 37 31 10 Jns. Rep. 222. 12 Mod. 440. 33 R. St. P. 3. Ch. 6. T. 4. s. 24. Vol. 2. p. 362. 33 Ib. 34 [b. s. 25. 38 6 Johns. Rep. 106. 2 Ld. Raym. 1048. 1252. 7 Term Rep. 837. 397 Cranch. 436. 4o 10 Johns. Rep. 221. 6 Cowen. 35 8 Johns. Rep. 361. 10 Johns. Rep. 387..2 Roll. Rep. 62. Rep. 220. 41 1 Salk. 89. 6 Mod. 82. 10 36 1 Taunt. 46. 6 Johns. Rep. Johns. Rep. 221. 108. Salk. 89. pl. 11. 37 2 Bos. & Pull. 357. 5 Cowen. Rep. 446. 42 6 Cowen. Rep. 385. retraxit, for that is a perpetual bar and equivalent to a release.43 PROSECU TION AND DEFENCE OF ACTIONS. General au thority. In general an attorney may exercise his discretion in all the ordinary occurrences which take place in relation to the cause he may make stipulations, waive technical advantages, and generally assume the control of the action.44 And a client has no right to control his attorney in the due and orderly conduct of a suit; but in the exercise of a sound discretion, he may act contrary to the express directions of his client.45 Under his general authority, an attorney may direct the sheriff as to the time and manner of enforcing the execution, and such directions are binding on his client.46 But he cannot, by virtue of his general authority as attorney, purchase land sold under an execution issued in the cause, for the benefit of, and as trustee for, his client.47 An attorney who May bring receives a note from his client to collect, is warranted by his general retainer to bring a second suit on the note, after being non-suited in the first, for want of sufficient proof of the execution of the note.48 second suit. costs. In certain cases an attorney is liable personally for the Security for costs, to an amount not exceeding one hundred dollars, unless security be filed according to the provisions of the statute;49 this subject will be treated of in a subsequent part of the work.50 and defence Where a party, other than an attorney, prosecutes or de- Prosecution fends in person, the service of papers may be on such party in person. personally, or by putting the same in the post office directed to him at his place of residence.51 43 Salk. 89. pl. 9. 10. Johns. Rep. 221. 447 Cowen. Rep.744. per Woodworth, J. 43 49 1 Wendell, Rep. 108. 467 Cowen. Rep. 739. 47 11 Johns. Rep. 464. 48 12 Johns. Rep. 317. 50 See Vol. 2. SHERIFFS. SECTION IV. OF SHERIFFS AND CORONERS. How chosen, &c. • ved. 3 Sheriffs.] These officers, of whom there is one for every county,' are chosen by the electors of the respective counties once in every three years, and as often as vacancies occur.2 They can hold no other office, and are ineligible to the same office for the next three years after the termination of their offices. They are required to reside in their bailwicks, and may continue to hold their offices until their successors are and remo- qualified.5 The governor has the power of removing them at any time, giving them a copy of the charges against them and an opportunity of being heard in their defence; and the statutes particularly direct the mode of inquiring into the truth of such Vacancies, charges." Whenever a vacancy occurs in the office, the governor is authorised to fill it until an election. Sheriffs, their under sheriffs, deputies and clerks are prohibited from practising as counsellors, solicitors or attornies in any court in the state. It is the duty of the secretary of state to keep in his office an alphabetical list of all the sheriffs in the state.10 how filled, &c. Sheriff's bonds. 9 Sheriffs before entering upon the duties of their office and within twenty days after notice of their election, are required to execute to the people of this state, a joint and several bond with freeholders as sureties, conditioned that they will well and faithfully in all things perform and execute their offices, without fraud, deceit or oppression.11 The bond of the sheriff of 11 R. St. 97. s. 3. 3 Ib. s. 48. 41 R. St. 102. s. 15. 5 1 R. St. 117. s. 10. 6 1 R. St. 123. s. 44. 7 Ib. s. 45. et seq. 1 R. St. 124. s. 49. 91 R. St. 109. s. 27. 10 1 R. St. 145. s. 45. 111 R. St. 378. s. 67. the city and county of New York is in the penal sum of twenty SHERIFFS. thousand dollars with two sureties; of other sheriffs, of ten thousand, 12 with two or more sureties. Upon filing the bond in the clerk's office of the county, the clerk is required to examine the sureties under oath as to their sufficiency, and is then to determine whether they are sufficient or not.13 Within twenty days after the first Monday of January, of each year thereafter, the sheriff is required to renew his bond in the same manner and with the same precautions as when he gave it.14 15 riffs. The sheriff as soon as he goes into office is to appoint an Under sheunder sheriff, removable at his pleasure, and to appoint another whenever a vacancy occurs. The under sheriff is to execute Their duties. the office of sheriff whenever the same becomes vacant until a successor is duly qualified, and any defaults or misfeasances of the under sheriff, both before and after the vacancy, are a breach of the sheriff's bond, as well as of his own bond to the sheriff.16 The sheriff may also appoint as many deputies as he pleases, and persons may be deputed, by the sheriff or under sheriff, by an instrument in writing, to do particular acts." The appointment of the under sheriff as well as of the deputies must be by writing under the hand and seal of the sheriff, and is required to be filed and recorded in the office of the clerk of the county.18 Deputies. The sheriff of the city and county of New York has the custody of custody of the jail for the confinement of debtors, and the she- jails. riff's of other counties, of the jails and prisons of their counties, with the prisoners; and they may appoint keepers, for whose acts they are responsible.19 mitted for 30 If a sheriff is committed to the custody of another sheriff or sheriff comof a coroner, on an execution or attachment for the non-pay- days to be ment of monies received by virtue of his office, and remains governor. reported to |